Elections for the state’s supreme court will play a role in keeping pro-abortion forces from overtaking the Buckeye State.
O hio may have lost its status as a swing state for presidential elections, but that doesn’t mean that it is any less of a battleground. Ohio was one of the many states last year that passed pro-abortion constitutional amendments, and the directly elected supreme-court justices will have a huge impact on how that amendment, enrolled as Article 1, Section 22 in Ohio’s constitution, will be interpreted and implemented. Ohio’s conservative voters need to keep their focus downballot to ensure the excesses of pro-abortion forces do not overtake the Buckeye State.
The supreme court of Ohio currently has a 4-3 Republican majority and is one of the few states where control of the judiciary is up for grabs this November. When current Chief Justice Sharon Kennedy won that role in 2022, her position as a junior justice was then opened up for an appointment. The Cincinnati area prosecutor and former state treasurer Joe Deters was appointed for her seat. Instead of finishing out the unexpired term ending in 2026, Deters is challenging Democrat and fellow incumbent Justice Melody Stewart for her seat. Hamilton County judge Megan Shanahan is challenging incumbent Justice Michael Donnelly, focusing her campaign primarily on his authorship of a supreme-court decision eliminating consideration of public safety when setting cash bail. Franklin County, Columbus-area Republican judge Dan Hawkins is running against Democrat Lisa Forbes for the two years remaining on Justice Deters’s seat. A Republican sweep would result in a 6-1 Republican supreme court. In the case of a Democratic sweep, they would capture a 4-3 majority with Chief Justice Kennedy presiding in the minority.
As to the amendment, Section 22 of the Ohio constitution is similar to many of the constitutional amendments passed last year and up for a vote in ten states this year. It claims:
A. Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:
1. contraception;
2. fertility treatment;
3. continuing one’s own pregnancy;
4. miscarriage care; and
5. abortion.”
B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either:
1. An individual’s voluntary exercise of this right or
2. A person or entity that assists an individual exercising this right,
unless the State demonstrates that it is using the least restrictive means to advance the individual’s health in accordance with widely accepted and evidence-based standards of care.
However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.
Passage of this amendment has already encouraged litigants to sue to overturn pro-life legislation passed by the Ohio General Assembly, including common-sense safeguards held to be constitutional under Roe v. Wade and Doe v. Casey. A Hamilton County judge has already blocked the Heartbeat Bill, removing the ban on abortion after six weeks. The ACLU has suits to remove the 24-hour waiting period and the ban on prescribing abortion pills via telehealth. In both cases, preliminary injunctions have paused the enforcements of these laws. Similar constitutional language passed in Michigan has empowered groups to sue to force taxpayer funding for abortions there.
The advertising and political push for this constitutional amendment was to “Codify Roe,” but these lawsuits show that this amendment could be interpreted to be much further than what was promised. Ohio has further protections for innocent life, including a ban on aborting a child due to a positive Down-syndrome diagnosis. We would expect these to be challenged as well, with all of these cases ending up before the supreme court of Ohio.
The ramifications of these judicial elections could be incredibly high. Obviously a Democrat-controlled court would push abortion to the hilt, with the candidates now actively promoting their endorsement by Planned Parenthood. A Republican majority on the supreme court, with strict adherence to the letter of Section 22, could give hope to the pro-life and limited-government side.
The Republican justices have often spoken on their originalist and textualist beliefs, using the original plain meaning of the text of a constitution or statute. Justice R. Patrick DeWine just released a law-review article distinguishing judicial interpretation of state versus federal cases. In his opinion, just because there is precedent on the federal level for the interpretation of a statute or phrase does not mean that it would be binding on the state level, and state justices should not be able to interpret their constitutions and statutes independently of that federal precedent.
A strict and independent reading of Article I, Section 22 could dispense with the expansive definition of health given in Doe v. Casey, which included mental or even financial well-being as within the definition of “health.” This definition has functionally resulted in no limits on abortion. Similarly, the requirements of Subsection (B)(2) to be focused solely on the standard of care and health of the mother could give protections that informed consent to a surgical procedure like abortion would require a 24-hour waiting period or other safeguards. Fortifying our courts with Republican justices in place would deny the extremism sought by the ACLU, Planned Parenthood, and their allies.
The language of Section 22 does shift the jurisprudence and evaluation of laws related to abortion. Under Roe and Casey, the balancing test was between the privacy and rights of the mother and the state’s interest in protecting life. The language of Section 22 requires any state regulation to be the least restrictive means of safeguarding the mother’s health, dispensing with that balancing test.
However, the language of Section 22 seems to create a constitutional right to abortion-pill reversal. The “abortion pill” is actually a two-pill regimen, the first starving the baby and the second expelling her. The plain reading of the language gives a full right to continuing one’s pregnancy, which should include taking medication to save a child in the womb from the chemical abortion in process.
Republicans are favored to win the three seats especially after partisan identifiers were added to supreme-court judicial races last election. The stakes are high as we continue to fight for the pro-life movement and for judicial restraint. These elections also give a glimpse into the next phase of elections for all the other states currently fighting similar amendments.