An amendment to the constitution of the US state of Ohio, which passed in a referendum on November 7, 2023, does not allow abortion through the full term of a pregnancy, contrary to what is claimed by posts on social networks. The measure continues to prohibit abortion after "fetal viability" -- approximately 22-24 weeks during gestation -- unless a doctor believes a pregnant patient's life or health is in danger, experts told AFP.
"So in Ohio you can now kill a baby up until the moment of birth for any reason and then smoke weed to try to erase your pain," says a November 7 X post, formerly known as Twitter.
States have been rapidly legislating and litigating reproductive rights in response to the June 24, 2022 US Supreme Court ruling in Dobbs v. Jackson which overturned the landmark Roe v. Wade decision that had recognized abortion as a nationwide constitutional right since 1973.
Following the federal court's decision, a local law went into effect in Ohio banning most abortions -- even in cases of rape or incest -- as soon as a heartbeat can be detected, approximately six weeks after fertilization.
But it was suspended in October 2022 after State Judge Christian Jenkins issued a ruling to allow pregnant people to access abortion up to approximately 22 weeks of a normal pregnancy of 39 to 40 weeks.
On November 7, 2023 a referendum was put to voters, asking whether to include the right to abortion in Ohio's constitution under Issue 1 or the Ohio Reproductive Freedom Amendment (archived here). A majority voted "yes" to enshrine abortion rights into the state's constitution, in what may well be a forerunner on an issue likely to dominate next year's US presidential race.
The amendment grabbed nationwide attention as groups on both sides of the debate shared a flurry of ads online, some misrepresenting the measure. Experts contacted by AFP agreed the latest claims do just that, by stating Issue 1 allows for unrestricted abortion access.
The newly passed amendment says that every individual has "a right to make and carry out one's own reproductive decisions" on issues such as abortion, contraception, fertility-related treatments and miscarriages.
However, it specifies that termination of pregnancy may be prohibited once the fetus is deemed viable outside the womb -- unless the treating physician determines the pregnant patient's life or health is at stake.
Tracy Thomas, director of the Center for Constitutional Law at The University of Akron, Ohio, who focuses on gender and civil rights issues, told AFP on November 6: "The amendment specifically says that the government may prohibit abortion after fetal viability at about 23 weeks."
Additionally, Thomas said there is already a federal law that prohibits "late-term procedures (so-called partial-birth abortions)."
These judgments should be decided by doctors practicing evidence-based medicine, not "an arbitrary time established by the government," she said.
Daniel Kobil, a professor at the Capital University Law School in Ohio and expert in constitutional law, said this amendment allows for reasonable regulations consistent with what has existed in that state for the past fifty years, adding it is "far from creating an unlimited abortion regime."
Jessie Hill, an attorney specializing in constitutional law and reproductive rights, echoed this, adding that exceptions to protect the pregnant patient's health "are extremely rare" and "often occur in tragic circumstances."
Hill said the law in Ohio had previously allowed for abortions to protect the pregnant patient "and there were no abortions in Ohio after 24 weeks of pregnancy for the past several years. There is no such thing as an abortion at 9 months of pregnancy."
The constitutional amendment will ensure that private medical decisions are made by patients and doctors without the government interfering and imposing the threat of criminal penalties for serious crimes she said.
Athenians for Bodily Autonomy, one of the activist organizations behind Issue 1, based in Athens, Ohio, told AFP in a November 7 email: "In short, it would return things to the status quo prior to the Dobbs decision last year."
Rights of minors
Additional claims focused on how Issue 1 would impact minors.
"It will also remove parental consent for minors seeking abortion," says a November 6 X post.
These posts erroneously claim that the amendment will allow minors to have abortions without parental consent.
Hill, who is also a professor of law at Case Western Reserve University, said current law in Ohio (archived here) requires minors to have parental consent for an abortion, similar to other medical procedures, and "nothing in the amendment addresses or changes that rule."
In 1990, the state of Ohio successfully defended the constitutionality of its parental consent rule for minors seeking to terminate a pregnancy in the case of Ohio v. Akron Reproductive Health Center (archived here).
Jonathan Entin, another law professor at Case Western, pointed out that there is no language regarding this topic in Issue 1.
According to Entin, the Supreme Court has recognized and upheld the law establishing parental consent in abortion cases both in Ohio and in other states -- even when the federal right to abortion was recognized.
AFP has fact-checked other claims about abortion here.