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Ohio abortion rights activists suffer blow in suit over referendum language

In this year’s only opportunity for US voters to directly weigh in on the right to abortion, an upcoming ballot referendum in Ohio will include language that describes a fetus as an “unborn child”, in a disappointing loss for abortion rights activists in the state who had sued to stop voters from seeing language they say is misleading.

Ohioans are set to vote on 7 November on a referendum to enshrine abortion rights into the state’s constitution. The outcome of the vote could not only determine the future of Ohio’s six-week abortion ban, which is currently frozen pending litigation, but also for the midwest writ large. The state has become one of the few in the region to still permit abortions since the US supreme court overturned Roe v Wade last year.

The Ohio referendum’s journey to the ballot box has been a long one. In an August special election, voters resoundingly rejected a GOP-backed ballot measure that would have required all constitutional amendments to garner 60% of the vote, rather than the simple majority currently required for passage. The measure was loudly denounced as an attempt to kneecap the abortion referendum and keep it from passing.

Weeks after Republicans lost that election, the Ohio ballot board met to decide what language should show up on voters’ ballots regarding Issue 1, the abortion referendum. Ohioans United for Reproductive Rights proposed using the text of the amendment, which includes guarantees that the state cannot interfere with the right to contraception, miscarriage care and abortion up until the point of viability, a benchmark that’s generally pegged to about 24 weeks of pregnancy.

However, by a 3-2 vote, the Ohio ballot board voted to adopt a summary of the amendment instead. This summary repeatedly substituted the term “unborn child” for “fetus” and says the amendment would “always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability” if a doctor deems an abortion necessary to protect a “pregnant woman’s life or health”.

Days after the Ohio ballot board vote, the coalition behind the referendum, Ohioans United for Reproductive Rights, sued. The board’s language, the group said in its lawsuit, “aims improperly to mislead Ohioans and persuade them to oppose the amendment”.

Instead, the coalition insisted on showing voters the entirety of the proposed amendment when they enter the ballot box.

In a ruling Tuesday evening, the Ohio supreme court ruled that the proposed summary was misleading only because it used the language “citizens of the state”. It ordered the Ohio ballot board to reconvene to rewrite the summary and accurately reflect that the abortion referendum will regulate the state government, rather than everyday Ohioans.

“This should have been simple, but the Ohio ballot board tried to mislead voters yet again,” said Lauren Blauvelt, the spokesperson for Ohioans United for Reproductive Rights. “Issue 1 is clearly and concisely written to protect Ohioans’ right to make our own personal healthcare decisions about contraception, pregnancy and abortion, free from government interference. The actual amendment language communicates that right clearly and without distortion.”

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In the months since the supreme court overturned Roe and eliminated the US constitution’s right to abortion, abortion rights supporters across the country have rushed to add abortion protections to their states’ constitutions – the best way to ensure that abortion remains available regardless of which political party controls the state. Abortion rights advocates won every abortion rights-related referendum in 2023, including in traditionally conservative states like Kansas and Kentucky.

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