Desperate Ohio GOP Claims Ballot Measure Would Overrule Federal Ban on an Abortion Procedure

Ohio Gov. Mike DeWine (R) is now claiming that Issue 1 could bring back a specific procedure that he voted to ban as a Senator in 2003.

By Susan Rinkunas | October 26, 2023 | 6:30pm

Abortion Politics

Desperate Ohio GOP Claims Ballot Measure Would Overrule Federal Ban on an Abortion Procedure

In less than two weeks, Ohioans will vote on Issue 1 with early voting already underway. And conservatives in Ohio simply can’t stop lying about the abortion ballot measure that would enshrine the right to reproductive health decisions in the state constitution.

They’ve been lying about what the amendment would do, lying that it’s not necessary, and now they’re telling the biggest tall tale: That, if passed, Issue 1 would overrule a federal ban on an abortion procedure that’s been in effect for more than 15 years. It’s absolute nonsense designed to get people to vote against it, or not vote at all, amid polls showing Issue 1 is polling favorably. (The pro-choice position is to vote “yes.”)

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In the final weeks of voting, Ohio Gov. Mike DeWine (R) and other top Republicans are fearmongering that Issue 1 could lead to the return of a procedure known as dilation and extraction, or D&X, which was previously used for both abortions and miscarriages in the second and third trimesters. Conservatives refer to this procedure using the non-medical term “partial-birth abortion,” and you can see how this inflammatory language might rile up voters about abortions later in pregnancy.

DeWine recently told reporters that he opposed Issue 1 because he claimed it would allow D&X procedures. “For many years, in Ohio and in this country, we’ve had a law that said a ‘partial-birth abortion’—where the child is partially delivered and then killed and then finally delivered—was illegal in Ohio,” he said. “This constitutional amendment would override that.” Attorney General Dave Yost (R) also made this claim in a legal analysis of Issue 1, and the Republican-controlled Ohio Senate passed a resolution saying similar.

But there’s this little thing in the U.S. Constitution called the Supremacy Clause, which means federal laws take precedent over state ones. President George W. Bush signed a law banning the procedure in 2003 and the Supreme Court upheld the law in 2007. (There is an exception if a pregnant person’s life is endangered.) DeWine knows about this law because he voted for it as a Senator in 2003 and even attended the bill signing ceremony.

Constitutional scholars told the Associated Press that these Republican claims are false because Issue 1 cannot override the federal ban. “If the federal law prohibits a particular technique, then that’s going to prevail over a state law that might be inconsistent,” said Jonathan Entin, professor emeritus of law at Case Western Reserve University. Dan Kobil, a law professor at Capital University in Columbus, said, “It would be a federal crime for a doctor to violate that ban.”

The AP asked DeWine’s office why he thinks that a federal ban he voted for would somehow not apply if Ohio amended its state constitution. A spokesperson said DeWine “bases his position on provisions of the U.S. Constitution that prevent the federal government from regulating conduct that has no effect on interstate commerce.” This is DeWine’s office basically admitting that he thinks the 2003 law is unconstitutional, but he voted for it anyway.

DeWine and others must be hoping that voters don’t think about their far-fetched claim for too long, because it falls apart under just a shred of consideration: Even if some Ohio group tried to say that Issue 1 gave them the power to legalize D&X procedures, there’s no way in hell this Supreme Court—the one that overturned Roe v. Wade—would let Ohio defy their precedents and bring back a banned abortion procedure.

Earlier this year, Secretary of State Frank LaRose (R) oversaw changing the word “fetus” in the amendment to read “unborn child,” and inserting that Issue 1 would “always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability,” when that is not true. (The Republican-controlled state Supreme Court upheld those changes in September.)

And DeWine himself is fresh off cutting an ad in which he ignores that the fate of Issue 1 could determine whether or not the six-week abortion ban he signed in 2019 will take effect. That law is currently blocked by the state Supreme Court, but without a codified right to abortion in the state, the court could let it take effect.

Republicans keep lying about what’s at stake here, probably because they’re terrified that voters will choose to protect their own rights.