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Ohio referendum. Voters will decide on the protection of life

Published: 06.11.2023

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- This Tuesday, the people of US Ohio will decide in a referendum whether so-called reproductive rights and the right to abortion will be written into the state constitution.

- The referendum is linked to the US Supreme Court's 2022 ruling in Dobbs v. Jackson Women's Health Organisation, which confirmed that the US Constitution does not guarantee the so-called right to abortion.

- By virtue of the aforementioned ruling, the competence to legally regulate abortion and the protection of unborn life was placed in the hands of the state authorities.

US Supreme Court ruling

In its 2022 ruling, the US Supreme Court challenged the previous line of jurisprudence, initiated by the 1973 Roe v. Wade ruling and confirmed by the 1991 Planned Parenthood v. Casey ruling, whereby the right to abortion would derive from the US Constitution. In its most recent decision, the Supreme Court majority held that the Roe v. Wade decision was wrong at the time it was handed down and needed to be overturned, and that the US Constitution itself does not guarantee a right to abortion. Consequently, the issue at hand should be left to the discretion of the individual states, which can normalise it at the level of state law.

Individual states decide the degree of protection of human life

Following the pronouncement of Dobbs v. Jackson, the question of regulating abortion law was again, as it had been before Roe v. Wade, i.e. before 1973, within the competence of the individual states. Most of them chose to regulate the issue through their state legislatures. Conservative states increased the scope of protection for unborn children by deciding to ban abortion, with the exception provided to save the woman's life. This has been done in Texas or Tennessee, among others.  Other states have introduced far-reaching (by American standards) protection of life, e.g. through so-called heartbeat bills, literally 'heartbeat laws', under which abortion is not possible once the heartbeat of the unborn child is detected (usually around the 5th or 6th week of pregnancy). Georgia, among others, has opted for this model of protecting the unborn. Unfortunately, some left-wing states have decided to go in the other direction, depriving the unborn of legal protection even at later stages of pregnancy. A shameful example of this is the state of Colorado, which has legalised abortion up to the day of birth, allowing babies to be killed just before they are born.

Some states have put the protection of human life to a vote of the people, who were to decide the issue in a referendum. This step was taken in Kansas, California, Michigan or Vermont, where residents voted in 2022 to write the so-called right to abortion into their state constitutions. In Kentucky, by contrast, an amendment was rejected whereby no provision of that state's constitution could be interpreted as protecting the right to abortion or to public funding of abortion. Particularly shocking were the results of a referendum also held in 2022 in Montana. Voters there voted against a proposal to oblige 'public health providers' to save the lives of babies born alive as a result of a failed abortion.

Ohio referendum

A similar measure, on the initiative of pro-abortion organisations, has also been decided upon in Ohio. In a referendum to be held on Tuesday 7 November, residents will decide whether to insert a new Section 2 into Article 1, which reads as follows:

Every person has the right to make and carry out his or her own reproductive decisions, including but not limited to decisions regarding:
fertility treatment;
the continuation of one's own pregnancy;
post-natal care; and
The State may not, directly or indirectly, burden, penalise, prohibit, interfere with or discriminate against:
the voluntary exercise of this right by an individual or;
a person or entity that assists a person exercising that right.
unless the State demonstrates that it is using the least restrictive means to improve the health of the person in accordance with generally accepted and evidence-based standards of care.

However, abortion may be prohibited after the fetus has reached viability. In no case, however, may abortion be prohibited if, in the professional judgment of the doctor treating the pregnant patient, it is necessary to protect the life or health of the pregnant patient.  As used in this section:
"viability of the fetus" means "the point in the pregnancy at which, in the professional judgement of the doctor treating the pregnant patient, the fetus has a significant probability of survival outside the uterus by reasonable means. This is determined on a case-by-case basis".

"State" includes any governmental entity and any political subdivision.

 This paragraph is self-executing.

As can be seen, it was not only the issue of access to so-called legal abortion itself that was put to the vote, but also issues related to infertility treatment or access to contraception. At this point, it is worth noting the references to the concept of so-called reproductive and sexual health and rights. This term first officially appeared in the documents of the International Conference on Population Development in 1994. Within its scope, left-wing circles include a number of issues, most notably the so-called right to abortion on demand, understood as a human right. This is therefore a contradictory concept in itself, as the so-called right to abortion is in clear contradiction with the right to life. Nowadays, by introducing the concept of 'sexual and reproductive rights' into the texts of various international agreements as well as soft law acts, leftist circles promote access to so-called abortion on demand. 

However, this way of addressing a fundamental problem, which is undoubtedly the need to protect human life from the moment of conception, raises far-reaching objections. Human rights, such as the right to life, should not be subject to voting decisions. It should be borne in mind that the right to life is a fundamental right which conditions the enjoyment of all other rights. It is therefore something to which every human being is entitled from the moment of conception, and therefore cannot be taken away by means of voting. In addition, one should bear in mind the intense activity of pro-abortion organisations, particularly strong in the United States, which distort the debate on the protection of unborn life and actively influence politicians.

Patryk Ignaszczak - Analyst, Ordo Iuris International Law Centre

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