The new constitutional safeguards for abortion access and other reproductive rights will become effective on December 7th in Ohio, following the overwhelming support of voters. The specific effects and timing of these protections are still uncertain.

Lawsuits concerning abortion are once again progressing through the legal system following the resolution of the issue by voters, prompting concerns about how it will be put into action.

The amendment declared an individual’s right to “make and carry out one’s own reproductive decisions” and passed with a strong 57% majority. It was the seventh straight victory in statewide votes for supporters of abortion access nationally since the U.S. Supreme Court overturned constitutional protections.

However, the amendment that was approved by voters on November 7 did not revoke any current laws in Ohio. This has caused some anti-abortion activists to increase their demands for Republican leaders to take further action to block, postpone, or greatly weaken the amendment.

Laura Hermer, a law professor at Mitchell Hamline School of Law in St. Paul, Minnesota, who specializes in researching access to healthcare in the U.S., explains that determining which state laws conflict with the amendment and which can still be in effect often falls to the court system. It is unlikely that the Legislature will easily concede and repeal the heartbeat ban, among other laws.

The Republicans hold the majority in the state Legislature and the Ohio Supreme Court. They were against Issue 1, a ballot amendment in November. The Supreme Court, with a 4-3 Republican majority, will have the ultimate say on any constitutional issues. Some of the Republican justices have made decisions or comments in the past that have raised concerns about their impartiality regarding abortion rights, according to ethics attorneys and pro-choice groups.

Following the election, Democratic lawmakers in the Ohio House introduced a bill to prevent a fragmented approach to enacting the amendment. The proposed measures include lifting the state’s restriction on abortions after detecting fetal cardiac activity (typically six weeks) and implementing a 24-hour waiting period.

State Representative Beth Liston, who is a medical professional and co-wrote the Reproductive Care Act, stated that there are more than 30 restrictions currently enforced. She believes it is crucial to avoid forcing individuals to seek legal action for each restriction and to prevent any harm from occurring during the process.

Minority Leader of the House Allison Russo was cautious in her comments about the influential high court, which has the power to determine the outcome of these laws.

She expressed her wish for them to follow and respect the laws and constitution.

Last week, Chief Justice Sharon Kennedy directed attorneys representing the state and a coalition of abortion clinics to inform the court of their opinions on how the passing of the measure has impacted a case regarding Ohio’s prohibition on most abortions after detection of fetal cardiac activity. The case has been suspended since October 2022.

The day after the amendment was approved by voters, Judge Michael Barrett of the U.S. District Court asked the parties involved in a longstanding federal lawsuit to do the same. The lawsuit challenges a series of state limitations placed on abortion providers, such as the need for clinics to have agreements with nearby hospitals for emergency patient transfers and a ban on public hospitals making these agreements.

Several other laws in Ohio regarding abortion have also been suspended in the legal system.

Republican lawmakers have largely rejected the idea of aligning Ohio law with the recent constitutional amendment, making it difficult to pass any corresponding legislation despite efforts to do so.

As the primary election approaches in their heavily Republican districts, they are being heavily pressured by anti-abortion organizations to take action in opposition to the amendment. This could include passing laws that counter it or using their supermajority to limit the courts’ ability to interpret it.

Faith2Action, an anti-abortion organization, contends in a newly released video that according to the (Ohio) Constitution, it is the responsibility of legislators to rein in unruly courts. They are urging legislators to fulfill their duty and exercise their constitutional right to represent the people, in order to prevent pro-abortion judges from overturning Ohio laws based on an amendment that does not address any specific Ohio law.

The video discusses how the “right to life” stated in Ohio’s constitution cannot be taken away, and that the U.S. Supreme Court’s ruling to reverse Roe v. Wade leaves the decision on abortion to be determined by elected representatives.

However, in his supporting statement for that decision, Justice Brett Kavanaugh, chosen by former President Donald Trump, stated that constitutional amendments were one of the options for determining the fate of abortion availability.

In addition, the Constitution allows for the establishment of additional rights at both the state and federal levels, through statutory and constitutional means,” stated Kavanaugh. “However, the Constitution instructs individuals to utilize the democratic processes outlined in the Constitution for the creation of new rights, including state laws, state constitutional amendments, federal laws, and federal constitutional amendments.”

At present, Jason Stephens, the Republican Speaker of the Ohio House, has stated that they will not be considering legislation that aims to limit the authority of state courts. Matt Huffman, the Republican President of the Senate, has also stated that lawmakers will not be pursuing an immediate repeal of Issue 1, which was previously suggested. He believes that such a move should not be attempted, at least until 2024.

The actions of Attorney General Dave Yost are being closely monitored.

According to a legal evaluation by Yost, a Republican, prior to the election, Issue 1 established a new criterion for safeguarding access to abortion that exceeds the precedent set by Roe v. Wade.

“He stated that this would result in potential invalidation of numerous laws in Ohio, with varying levels of risk for others.”

According to Hermer, a professor of law, the statement is advantageous for lawyers trying to enforce the constitutional amendment. However, Yost is not legally obligated to follow this analysis.

She stated that he does not have to step down, but by already saying that, it may make it challenging to maintain those roles.