As Election Day approaches, organizations against abortion in Ohio are focusing on a term for a procedure that was once performed in later stages of pregnancy but has been illegal in the United States for more than 15 years.
In various advertisements, discussions, and official statements, the opposing campaign and prominent members of the Republican party have been using the term “partial-birth abortion” more frequently, warning voters of its potential danger if they vote to pass the constitutional amendment on November 7th. This term refers to a medical procedure called dilation and extraction (D&X), which is already banned at the federal level.
Ohio Governor Mike DeWine stated to reporters that the constitutional amendment, also referred to as Issue 1, would permit a partial-birth abortion. He expressed his disapproval of the amendment.
In both Ohio and the United States, there has been a longstanding law prohibiting partial-birth abortions, which involve partially delivering a child before killing it and then completing the delivery. However, the governor stated that this new constitutional amendment would supersede that law.
Experts in constitutional law argue that this statement is inaccurate and that the amendment, if passed by Ohio voters, would not supersede the current federal prohibition.
According to Dan Kobil, a law professor at Capital University in Columbus and an advocate for abortion rights, amending the constitution would not alter the enforcement of the federal ban on partial-birth abortion. This means that it would still be considered a federal offense for a doctor to violate this ban.
According to Jonathan Entin, a law professor at Case Western Reserve University, the U.S. Constitution’s supremacy clause dictates that federal laws take precedence over state laws.
He stated that if a federal law prohibits a certain method, it will take precedence over a state law that conflicts with it.
In November, only Ohio will vote on the legality of abortion. However, this discussion is not happening on its own. Anti-abortion organizations have been using the state as a platform to test their campaigns following several losses since the Supreme Court eliminated a constitutional right to the procedure. Additionally, abortion advocates intend to bring the topic to voters in multiple states next year, guaranteeing its prominence in various elections.
A D&X procedure involved expanding the woman’s cervix, then extracting the fetus through the cervix, with its feet being the first to pass through. The head was then pierced and the contents of the skull removed and compressed in order for the fetus to fit through the widened cervix. This procedure was used for terminating pregnancies and managing miscarriages in the second and third trimesters before being banned at the federal level.
DeWine, during his time in the U.S. Senate, supported the passing of the Partial-Birth Abortion Ban Act in 2003. He cast his vote in favor of the ban, citing a widespread agreement among moral, medical, and ethical perspectives that the procedure was cruel and inhumane. The bill was signed into law by President George W. Bush with DeWine by his side.
The prohibition was mostly suspended during the duration of a legal dispute. In 2007, the U.S. Supreme Court dismissed objections to the legislation, affirming its enforcement in all 50 states.
When questioned about the governor’s statement that a federal law he endorsed would not be applicable if Ohio amends its constitution, spokesperson Dan Tierney explained that DeWine’s stance is based on clauses in the U.S. Constitution that prohibit the federal government from regulating actions that do not impact interstate trade. Kobil recognized this reasoning but believes it would likely be unsuccessful in a legal challenge, as the Supreme Court has previously ruled in favor of the ban’s constitutionality.
If the amendment is approved on November 7th, DeWine will not be the only high-ranking Republican in the state to caution that the process will be reinstated.
According to a memo released by Republican Attorney General Dave Yost this month, if the amendment is passed, the state’s laws prohibiting abortions through D&X and D&E procedures – the most commonly used second trimester method – would be deemed invalid and these types of abortions would be allowed. The Republican supermajority in the Ohio Senate also passed a resolution stating a similar sentiment.
According to Entin, a professor at Case Western, if the laws in Ohio that he mentioned are also included in the federal law, it is of no consequence because procedures that are prohibited by the federal government would still be considered unlawful.
Kelsey Pritchard, the head of state public affairs for Susan B. Anthony Pro-Life America, which provides significant funding for the campaign against the amendment, stated that the federal ban is not effectively enforced under a Biden Administration that she considers to be strongly in favor of abortion rights.
“If there is no enforcement or consequences, then the state must step in to provide protection,” stated Amy Natoce, spokesperson for Protect Women Ohio, the campaign against Issue 1. “If Issue 1 is approved, these protections will not be in place.”
According to Mae Winchester, a specialist in maternal fetal medicine based in Cleveland, the use of this term in the campaign’s messaging about the amendment is deceptive.
The term “partial-birth abortion” is fabricated and only serves to cause confusion and shame around later abortion procedures. It is not a term used in medical literature and is not recognized as a legitimate medical procedure.
In 1995, Ohio became the first state to prohibit a procedure known as “partial birth feticide,” a term coined by its lawmakers. This came after Ohio physician Martin Haskell introduced the D&X procedure at a conference for abortion providers three years prior. He claimed that it allowed for a quicker recovery time and was less risky and painful for women compared to other methods.
The organization Protect Women Ohio has referenced the historic contributions of Dr. Haskell in one of their advertisements. The ad features a photo of Dr. Haskell and characterizes his procedure as “harmful to both the mother and the baby.” The narrator then urges viewers to vote against the amendment in order to prevent doctors like Dr. Haskell from performing “late-term” abortions.
The location does not acknowledge the difference between “partial-birth” and “late-term” abortions – both terms created by those against abortion – and does not mention the federal ban.
According to Mike Gonidakis, who is the president of Ohio Right to Life, the advertisement is able to withstand any sort of examination due to the safeguards in place for both individuals and abortion providers in the amendment.
Haskell has been out of active practice for two years. He chose not to provide a statement. However, he has made contributions to the primary organization advocating for the constitutional amendment, Ohioans United for Reproductive Rights.
Kellie Copeland, Executive Director of Pro-Choice Ohio, denounced the use of terms like “late-term” and “partial-birth” in discussions about abortions as a fear-mongering tactic.
She stated that Issue 1 provides necessary limitations on abortion after the point of viability in order to safeguard the well-being and safety of patients. She also acknowledged that these cases, in which a woman requires an abortion in the later stages of pregnancy, are uncommon and emotionally devastating for families.
According to data collected by the Ohio Health Department, there have been no abortions performed after 25 weeks of gestation in Ohio since 2018. Only four such procedures have been recorded since 2013. Additionally, there have been a total of 576 abortions between 21 and 24 weeks gestation, which accounts for 0.6% of all abortions during this time period.
According to Pritchard, from the organization Susan B. Anthony Pro-Life America, the small figures can be credited to the current abortion limitations in the state.
The university name in this story has been updated to accurately reflect that it is Case Western Reserve University, not Case Western State University.
Christine Fernando, a reporter for the Associated Press in Chicago, contributed to this report.