BY SUSAN TEBBEN
Editor’s Note: This article is part of a series looking at the language of Ohio Issue 1 and the reproductive rights it would impact. The full language of the amendment can be found here.
The topic of parental rights does not appear in Ohio Issue 1 on the ballot Nov. 7.
There is no mention of denying any rights to parents in the process of enshrining reproductive rights like abortion, contraception, miscarriage care and infertility treatment into the Ohio Constitution.
“I don’t think Issue 1 would affect parent’s rights at all,” said Tracy Thomas, the Seiberling Chair for Constitutional Law and director of the University of Akron’s Center for Constitutional Law.
Having studied reproductive rights cases in Ohio and nationwide, including the Dobbs case that overturned Roe v. Wade, Thomas said historically, “parental rights have consistently been retained.”
“I would expect that those (rights) can all stay consistent,” Thomas told the Capital Journal.
Ohio Attorney General Dave Yost also acknowledged that previous abortion rights court cases have upheld parental consent in a legal analysis of Issue 1 he released in early October.
Yost went on to say “the amendment does not specifically address parental consent.”
But, Yost argued, that consent “would certainly be challenged on the basis that Issue 1 gives abortion rights to any pregnant ‘individual,’ not just to a ‘woman.’”
The term “individual” is currently used 36 times in the Ohio Constitution, including in the definition of “health care system,” the eligibility of officeholders, and clauses on temporary housing and corporate property.
Only one use of the word “individual” is connected to a gender specifier: the constitutional language on marriage states “only one man and one woman” can be in a marriage “valid or recognized by this state,” and “relationships of unmarried individuals” can not hold the same legal status.
Still, Religious lobbies and anti-abortion rights groups that oppose the amendment have used that message as one of their primary arguments against the measure since the effort to get it on the ballot began.
In a new ad for the Issue 1 opposition group Protect Women Ohio, a coalition including Ohio Right to Life and other anti-abortion rights groups, Gov. Mike DeWine and First Lady Fran DeWine feature as leaders against the measure.
Fran DeWine is shown in the ad saying Issue 1 “would deny parents the right to be involved when their daughter is making the most important decision of her life.”
Gov. DeWine admits in the ad that Ohioans “are divided on the issue of abortion,” but calls Issue 1 “not right for Ohio.”
The Catholic Conference of Ohio pointed to the first line of the proposed amendment and the word “individual,” saying the use of the word would allow anyone under age 18 to “have an abortion, or make any reproductive decision without their parents’ consent or notification.”
State Sen. Kristina Roegner, R-Hudson, the sponsor of the six-week abortion ban law that is currently on hold as court cases determine its fate, co-sponsored a resolution in the Ohio Senate on Oct. 11 officially standing against Issue 1.
In opposing Issue 1, she said the measure was “extreme, nefarious” and would “harm women and take away parental rights.”
The resolution passed with the GOP majority unanimously approving it. The seven Democratic senators all voted against the measure.
The resolution itself proclaims “parents are the ultimate arbiter of what is best for their children.”
In one paragraph of the resolution, sponsors Roegner and state Sen. Michele Reynolds, R-Canal Winchester, write that Issue 1 “will eliminate many, if not all, state laws regarding abortion,” including “parental notification requirements.”
In the next paragraph, the resolution states Issue 1 “may” eliminate parental rights.
Senate Minority Leader Nickie Antonio, D-Lakewood, pushed back against the resolution by bringing up a decade-old legal process present in Ohio called “judicial bypass.”
Judicial bypass, as it stands now, has been around since 2012 in the state, after then-Gov. John Kasichsigned a law that prohibits forcing a minor to have an abortion, but leaves in place a legal way for minors to petition juvenile court to bypass parental consent.
The Ohio Supreme Court explained the process in Rule 23 of a 2015 amendment to its “rules of superintendence,” an internal operations document for all Ohio courts.
The legal method uses the court system to allow underage individuals to make decisions for themselves where parental consent would typically be necessary, such as in cases of abuse.
“If the court finds by clear and convincing evidence that the minor is sufficiently mature and well enough informed to decide intelligently whether to have an abortion, the court shall grant the petition and permit the minor to consent to the abortion,” the law states.
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