After the Supreme Court overturned the 49-year-old right to an abortion in June, 20 states banned abortion almost entirely. The fight over abortion rights now moves from federal to state courts, on completely different legal grounds.
Ohio is a key example in how abortion rights supporters are now relying on legal arguments that are significantly different from what they used at the federal level. They recently filed a lawsuit challenging the constitutionality of the state’s near-total ban on abortion citing multiple state constitutional clauses, including a provision once pushed by conservatives.
The Ohio Healthcare Freedom Amendment passed in 2011 with the support of conservative groups including the anti-abortion Ohio Right to Life, with the aim of preventing the newly enacted Affordable Care Act from forcing anyone in the state to purchase health insurance.
“It’s very ironic that it’s being considered in this context,” Steven Steinglass, dean emeritus at Cleveland-Marshall Law School and an expert on the Ohio Constitution, said.
Ohio’s health care freedom amendment was part of the conservative reaction to the enactment of President Barack Obama’s signature legislative achievement.
The 2010 health care reform law expanded health insurance coverage by expanding Medicaid, setting up health insurance exchanges to be run by either the federal government or individual states, provided subsidies to people making a certain amount of money to purchase insurance through the exchanges and mandated people whose employers did not provide health insurance to purchase health insurance or pay a fine.
Conservative activists sought to counter the law with “health care freedom” legislation in a bid to invalidate or complicate both the law’s exchanges and individual mandate.
The American Legislative Exchange Council, a nonprofit group linking conservative state legislators with corporate lobbyists and right-wing activists to jointly write model legislation, proposed “health care freedom” laws as Democrats began holding health care reform hearings in anticipation of winning the 2008 election.
ALEC’s Freedom of Choice in Health Care Act sought to make it illegal for federal and state governments to require anyone to purchase insurance or participate in a particular health care system, like the exchanges set up by the Affordable Care Act.
Ohio’s amendment took from the ALEC model bill with provisions prohibiting any “federal, state, or local law or rule” to require “any person, employer, or health care provider to participate in a health care system” or to “impose a penalty or fine for the sale or purchase of health care or health insurance.” The amendment also states, “No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance.”
Ohio Right to Life endorsed the amendment campaign claiming in 2011 that its adoption “will preserve their freedom to choose healthcare coverage free of abortion funding and healthcare rationing.”
The adoption of the Ohio Healthcare Freedom Amendment, which voters approved by a 2-1 margin, ultimately had no impact on the rollout of the ACA’s health insurance exchanges. Nor did it hinder the implementation of the individual mandate, which was repealed by Republicans in Congress in 2017.
While it didn’t do anything to derail the Affordable Care Act, it could now play a role in derailing Ohio’s 2019 abortion ban law.
The amendment, by itself, would not provide enough of a basis to overturn Ohio’s abortion ban, according to Steinglass.
“The mistake people make is they look at these provisions in a silo and don’t recognize the constitution has to be read holistically,” Steinglass said. By reading the state constitution holistically and focusing on the provisions that are “specific to the state,” Steinglass added, you can determine the “values of the state.”
“The values of the state come from different places,” Steinglass said. “They can come from their history, their traditions. But they can also come from amendments like the health care amendments.”
That is the argument abortion providers and their supporters make in their brief to the Ohio Supreme Court. The lawsuit points to particular provisions of the Ohio Constitution, particularly those that provide greater protections of rights than those in the U.S. Constitution, and how they reinforce each other.
“No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance.”
The Ohio Healthcare Freedom Amendment is cited in conjunction with the state’s Due Course of Law Clause and its Inalienable Rights Clause.
The Due Course of Law Clause, much like the reading of the federal due process clause in Roe, provides a substantive due process right to “reproductive autonomy and bodily integrity,” the lawsuit argues, citing multiple Ohio state court decisions that reached the same determination.
The state constitution’s Inalienable Rights Clause is its first clause and it reads a lot like the Declaration of Independence.
“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety,” it states.
The lawsuit notes that, “Ohio courts have explained that Article I, Section 1 recognizes inalienable rights that are broader than any right recognized in the United States Constitution,” including protecting the rights to “personal security, bodily integrity, and autonomy.”
The due process clause and the inalienable rights clause must be read with the health care amendment, “which has no analogue in the United States Constitution,” the lawsuit argues, because it “expressly provides for the protection of individual autonomy in medical decision-making.”
“The Health Care Freedom Amendment further bolsters the Ohio Constitution’s strong emphasis on protection of liberty and personal autonomy, and reinforces that these protections extend to Ohioans’ right to make decisions about their own bodies—including the fundamental right to make a decision as private and central to a person’s bodily integrity as the decision to have an abortion,” the lawsuit states.
“That particular amendment underscores the importance of health care and when read in conjunction with other provisions of the Ohio Constitution it provides a solid credible basis for concluding that the Ohio Constitution properly construed protects reproductive freedom,” Steinglass said.
Separately, the lawsuit also argues that the abortion ban law violates the state’s Equal Protection Clause, which is different and broader than the federal clause of the same name, by discriminating against women.
Abortion proponents filed the lawsuit with the Ohio Supreme Court on June 29 in a bid to get the state’s highest court to consider the case first due to the immediate statewide impact of the abortion ban law. The court is still deliberating about whether to take the case. If it does not take it up, the case will be referred to lower state courts and have to wind its way up on a slower path to the Supreme Court.