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Opinion In post-Roe America, weird changes might be coming to abortion law

An abortion rights activist holds a sign during a rally last year in Columbus, Ohio. (Brooke LaValley/AP)
5 min

As states continue to tackle abortion law, post-Roe America looks more and more like Crazy Town. From South Carolina, where some legislators seek to codify abortion as homicide, to states such as Ohio, where a proposed constitutional amendment would seemingly allow unfettered access to nearly any reproductive procedure until fetal “viability,” it’s increasingly obvious that lawmakers are operating well above their pay grades.

Let’s first be clear that South Carolina is an outlier. The pro-life movement has not called for punishing women. The South Carolina proposal, which has already lost several sponsors, isn’t pro-life at all.

Even before the Supreme Court’s reversal of Roe v. Wade last June, a consortium of more than 70 pro-life leaders sent a joint letter to state legislators urging them to reject policies and laws that would punish women who have abortions. Instead, they urged compassion, saying “we must ensure that the laws we advance to protect unborn children do not harm their mothers.”

Meanwhile, Ohio might be following three other states (Michigan, California and Vermont) in taking radical measures in the opposite direction with a proposed constitutional amendment allegedly meant to protect abortion. I say “allegedly” because the amendment — if passed by voters as a ballot measure in November — would slyly open the door to much more. For now, grass-roots organizers are gathering the more than 413,000 signatures required to get the measure on the ballot.

My antennae shot up when I saw that the abortion amendment doesn’t mention women. Ahem, who else gets an abortion? The “pregnant patient,” that’s who. Why bother with such silly wordplay? From my reading, it’s an unsubtle hint that the amendment isn’t wholly intended to protect a woman’s right to choose. “Woman,” you see, suggests a binary-biological identity, which discriminates against some folks and the several medical interventions that they might find desirable in achieving their chosen identities. Men can have babies, too, can’t they? Well, a transgender man with a uterus can.

This isn’t spelled out anywhere, but the Ohio amendment’s language could be extrapolated to protect access to all sorts of medical interventions, including sex-change surgery or sterilization, and not just for adults. Age is never mentioned in the amendment, meaning that children could have unfettered access to surgical procedures, including abortion, without parental interference.

What’s also clear is that these abortion “protections” would remove regulations that are now in place, such as requirements that abortion clinics meet hospital standards for patient care. Or that a hospital be nearby. Or that parental consent be required for minors.

Ohio’s own history provides a cautionary tale. More than a decade ago, a 21-year-old soccer coach impregnated a 14-year-old girl on the team and helped arrange an abortion at Planned Parenthood. Pretending he was the child’s father on the phone, according to court documents, the coach literally dialed it in. That is, his permission for the procedure. The girl’s parents filed a lawsuit against Planned Parenthood for failing to get parental consent as required by law, for not informing the girl of risks and alternatives, and for not reporting suspected child abuse. The case was later settled, and the coach was found guilty of sexual battery.

Such legal recourse would not be possible under the proposed constitutional amendment, which shields all parties to an abortion from “interference,” stating that “every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion.”

Several phrases here cry out for clarity. “Every individual,” for instance, means minors are free from interference, relegating their parents to a tertiary role without standing or authority. The state becomes the parent, in other words. And “but not limited to” leaves the door parted for other loosely related procedures. “Fertility treatment,” broadly applied, could protect sterilization, as well as transgender alterations, from parental input.

Ohio’s amendment does at least protect a viable fetus from dismemberment (I prefer the language of reality) but allows for the “pregnant patient” and her physician to abort a viable baby for the patient’s “life or health.”

It would seem that the Ohio amendment allows too much while doing too little to protect women and children from predators and abortion bullies. A survey by the Charlotte Lozier Institute, the research arm of the pro-life group Susan B. Anthony List, found that 3 out of 5 women who had abortions felt pressured to end their pregnancies. Yet the amendment would protect third parties, boyfriends, husbands and others who “assist” in procuring an abortion.

We should understand that not everyone who seeks an abortion is a free agent girded with knowledge, wisdom and experience. Some are victims of what I call “the abortion assumption,” the common belief that abortion is the best option for women with an unplanned pregnancy or for girls deemed too young to carry a pregnancy to term.

In Virginia earlier this year, parents filed a lawsuit against an abortion clinic and the Dickenson County Department of Social Services, claiming that the clinic’s director and a social services worker pressured their teenage daughter into having an unwanted abortion. Here again, under what’s being proposed in Ohio, this girl and her parents would have no legal recourse. Indeed, the parents might have been sued for trying to interfere.

Should Ohio’s constitutional amendment pass, I don’t expect a sudden explosion of transgender surgeries or parents in court, but it seems inevitable that similarly worded amendments eventually could produce lawsuits pitting children and third parties against parents for “interference.” Just as likely, other medical interventions could become constitutionally protected regardless of a person’s age and regardless of the family’s vital role in such decisions.

It’s one thing to amend a constitution to guarantee the people’s will. It’s quite another to use murky language to codify an agenda people might otherwise reject.