On Tuesday, Ohio voters passed Issue 1, the constitutional amendment that ensures the right to make and carry out reproductive decisions, including abortion, contraception, fertility treatment and miscarriage care. Ohio is now the seventh state where voters have decisively protected reproductive rights since the U.S. Supreme Court overturned Roe v. Wade in 2022.
Signal Cleveland asked Jessie Hill, a professor and associate dean at Case Western Reserve University’s School of Law, to weigh in on what this new amendment means for Ohioans and whether it could be challenged again by state legislators. This interview was edited for brevity.
Can the proposed amendment or the election be challenged in court? If so, can the implementation of the amendment be delayed?
Hill: The only way the amendment could be challenged is if it were found to violate federal law. A constitutional amendment is superior to regular state laws. There is no way to argue that the amendment is contrary to some Ohio statute or regulation.
If there had been a question about the validity of the election results, there is a possibility that the implementation could have been delayed — though the 30-day effective date is written in the Ohio Constitution, so it’s not certain even that would delay implementation. But given the decisive [vote] margin for Issue 1, this is also very unlikely.
Some Republican legislators are already talking about limiting the scope of the amendment, apparently through new legislation. What are their options?
Hill: If legislators want to change the amendment, they actually have to do that through another constitutional amendment, not regular legislation. This means they would have to draft the new amendment and then put it on the ballot again, and it would have to pass with a majority vote. Unless they want to raise the threshold to 60% now, ha ha.
If Republicans win both chambers of Congress and the White House next year and pass a national abortion ban, would that supersede the rights now embedded in Ohio’s constitution?
Hill: Yes, that is the only other way the amendment could be undermined. Because federal law is supreme over state law — including state constitutions — a federal abortion ban would trump even Ohio’s constitutional amendment.
Would a national abortion ban be unconstitutional, in light of the U.S. Supreme Court’s overturning of Roe v. Wade and returning legal authority over abortion to the states?
Hill: Not necessarily. In Dobbs [the case that led to overturning Roe v. Wade], the Supreme Court said that the Fourteenth Amendment to the U.S. Constitution does not provide any protection for abortion rights, but it did not speak to what Congress can or cannot do. The court only said that states can decide because there is no federal constitutional protection for abortion rights that would prevent states from passing laws restricting abortion.
That said, there may be other arguments — not based on Dobbs but based on the U.S. Constitution — that a federal abortion ban is unconstitutional, such as that Congress lacks the authority to pass such a law. If a federal ban is passed, and then challenged, the U.S. Supreme Court will ultimately decide the issue.
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