Abortion

From 'Fetus' to 'Unborn Child': Ohio Adopts Biased Ballot Summary of Abortion Amendment

Plus: First Amendment experts talk about age verification laws, fentanyl fact check, and more…

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"Vote here" sign outside Ohio voting place | AARON JOSEFCZYK/UPI/Newscom
(AARON JOSEFCZYK/UPI/Newscom)

Biased changes to ballot language spur lawsuit. Ohio Republicans failed in an attempt to doom an abortion rights ballot initiative by changing the threshold of votes needed for it to pass. Now, Ohio Secretary of State Frank LaRose—who said the attempt was "100 percent" about thwarting the abortion measure—has a new tack to stack the deck against it: using highly charged and potentially misleading ballot language.

Backers of the measure are, in turn, suing over the LaRose-approved ballot summary.

The measure, dubbed Issue 1, will be put to Ohio voters this fall and would amend the Ohio Constitution to make explicit that the state protects reproductive freedom.

It would add a "Right to Reproductive Freedom" section to the Ohio Constitution, stating that "every individual has a right to make and carry out one's own reproductive decisions, including but not limited to decisions on: contraception; fertility treatment; continuing one's own pregnancy; miscarriage care; and abortion. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either: an individual's voluntary exercise of this right or a person or entity that assists an individual exercising this right" unless it "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."

The proposed amendment goes on to say that the state could still ban abortion "after fetal viability" (defined as "the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus"). However, post-viability bans could not apply in situations where "the pregnant patient's treating physician" deems an abortion necessary "to protect the pregnant patient's life or health."

Backers of the amendment proposed putting its full text on the ballot. That seems like it should be pretty uncontroversial, no? When it comes to something as weighty as amending the state's constitution, it's good to give voters all of the context and facts.

But in a 3-2 vote last week, the Ohio Ballot Board—which contains LaRose as a member—rejected the idea that this fall's ballots should include the amendment's full text. Instead, they opted for summary language submitted by LaRose's office.

The summary text characterizes the bit about post-viability bans and their exceptions by saying the amendment would "always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability, if, in the treating physician's determination the abortion is necessary to protect the pregnant woman's life or health."

It uses the phrase unborn child instead of fetus.

It leaves off any mention of specific reproductive rights other than abortion, omitting the amendment's references to contraception, fertility treatments, continuing a pregnancy, and miscarriage care.

Instead of saying that the amendment would restrict "the State"—defined in the proposed amendment as "any governmental entity and any political subdivision"—from interfering with reproductive freedom, it says it would block "the citizens of the State of Ohio" from doing so.

And instead of saying the amendment would give Ohioans the "right to make and carry out one's own reproductive decisions," it says it would guarantee the right to one's own "reproductive medical treatment." Backers of the amendment suggest this change falsely implies that the amendment would make the state provide and fund abortions.

The new language "is blatantly misleading and purposefully inaccurate," asserted Rep. Elliot Forhan (D–South Euclid).

"The entire summary is propaganda," said Ohioans United for Reproductive Rights co-chair Lauren Blauvelt.

LaRose is "the public servant responsible for conducting free and fair elections in Ohio" but he's "playing dirty to win. It's wrong," opined journalist Marilou Johanek in the Ohio Capital Journal.

LaRose called the new language "fair and accurate."

The Ohio Ballot Board is supposed to be a neutral arbiter of ballot language. But before voting on the language, board member and state Sen. Theresa Gavarone made it clear that she's anything but neutral. "This is a dangerous amendment that I'm going to fight tirelessly against," she said.

"Gavarone also claimed, as anti-abortion groups throughout the state do as well, that the amendment is 'an assault on parental rights,'" but "neither the amendment nor the summary approved by the board mention parental rights of any kind," notes the Ohio Capital Journal. "The senator continued her comments during the board meeting, saying the true nature of the amendment 'is hidden behind overly broad language,' despite the fact that the board summary took out pieces of the full text."

This week, Ohioans United for Reproductive Rights filed a lawsuit challenging the proposed ballot summary, calling it "irreparably flawed" and aimed at misleading Ohioans into voting no on the proposal. The group is asking the Ohio Supreme Court to order the board "to reconvene and adopt the full text of the Amendment as the ballot language" or, alternatively, to "adopt ballot language that properly and lawfully describes the Amendment."

FREE MINDS

First Amendment experts discuss age-verification laws. In a new panel discussion hosted by the Woodhull Freedom Foundation, First Amendment lawyers Lawrence Walters and Bob Corn-Revere have a wide-ranging discussion about age-verification laws, regulation of social media, and Woodhull's case against FOSTA:

R Street Institute's Shoshana Weissmann has been doing a series of columns about age-verification proposals. Her latest looks at how VPNs render enforcement impossible.

FREE MARKETS

Reminder: We can't drug war our way out of fentanyl overdoses… 

… and most fentanyl entering the U.S. is coming through legal ports of entry, not being smuggled over the U.S.-Mexico border. Reason's Fiona Harrigan noted this last year:

Despite the idea's sticking power in certain circles, it's inaccurate to say that undocumented immigrants crossing an open border are chiefly responsible for fentanyl arriving at the country's doors. In reality, U.S. citizens carrying the drug through legal ports of entry are primarily to blame.

U.S. Customs and Border Protection (CBP) has reported an upward trend in fentanyl seizures over the past few years. From 2,800 pounds seized in FY 2019, CBP seized 11,200 pounds of fentanyl in FY 2021 and 12,900 pounds in FY 2022 through the end of August.

Seizures conducted by two distinct bodies within CBP combine to yield those numbers. The first, the Office of Field Operations (OFO), enforces immigration and customs laws at ports of entry—points where someone may lawfully enter the United States. The second is U.S. Border Patrol, which intercepts undocumented individuals and illegally imported goods between those ports of entry.

The vast majority of fentanyl seized in recent years has been obtained by the OFO, not Border Patrol. The drug was mainly seized from smugglers at legal ports of entry, not illegal border crossings. OFO seizures amounted to 2,600 pounds in 2019 (93 percent of the total fentanyl seized by CBP), 4,000 pounds in 2020 (83 percent), 10,200 pounds in 2021 (91 percent), and 10,900 pounds so far in 2022 (84 percent). The Drug Enforcement Agency confirms the port trend, saying that "the most common method employed [by Mexican cartels] involves smuggling illicit drugs through U.S. [ports of entry] in passenger vehicles with concealed compartments or commingled with legitimate goods on tractor-trailers."

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