COLUMBUS, Ohio (WCMH) – In just under 30 days a new reproductive care amendment, that voters overwhelmingly supported, will be written into the state’s constitution. But there are some legal questions out there, so two law experts are helping clear things up.
On Dec. 7, the right to an abortion to the point of fetal viability will be written in the state’s constitution but at the statehouse, some Republican representatives said the amendment does not repeal any of the state’s abortion laws. Legal experts said that doesn’t matter.
“Even if the laws are not repealed, some of them are still going to be found, by the courts, to be inconsistent with Ohio’s reproductive freedom amendment,” said Professor of Law at Capital University Law School Dan Kobil.
“It’s in the Ohio Constitution, it is above state statutes and state statutes must conform to the Ohio constitution,” Dean Emeritus of the Cleveland State University College of Law Steven Steinglass said.
Steinglass said ideally, members of the state legislature would repeal laws that conflict with the new amendment like the state’s six-week abortion ban with no exceptions for rape or incest. And despite Democrat lawmakers introducing a bill to do that last week, Governor Mike DeWine (R-Ohio) said he’s not in favor of doing that
“Issue 1 expressly states that it is self-executing,” Steinglass said. “If a constitutional provision is self-executing, what that means is you don’t need any statute.”
The six week abortion ban has been enjoined — or put on hold by a Hamilton County court but Kobil said the same happening to this new amendment is unlikely.
“There wouldn’t likely be any plausible legal basis to do it. Anybody can try to file things, but I think the courts will try to dispose of it quite quickly,” Kobil said. “All the particulars to amend the constitution were complied with.”
Lawmakers are still weighing their options, including a group of house Republicans looking to remove jurisdiction from the courts to hear cases over the new amendment. Kobil said the legislature can establish jurisdiction, but that’s about it.
“The Ohio legislature itself cannot engage in judicial actions,” Kobil said. “If they wanted to enforce any of the current laws that regulate abortion, the only way those could be enforced are through the courts. So, if they took away jurisdiction for the courts to preside over such cases, they would be in effect shooting themselves in the foot.”
The Republicans behind the push want the legislature alone to consider what, if any, modifications will be made to existing laws. But Kobil and Steinglass said that violates the separation of powers and principles of due process of law. Steinglass said a piece of legislation would not have the legs to take away those judiciary powers.
“And I won’t even preface that with ‘in my humble opinion.’” Steinglass said. “You can throw things against the wall, the question is will it stick, and I’m afraid, for them, that not much of this is going to stick.”
Spokespeople for both the speaker of the house and senate president said they decline to comment on the push to remove those judiciary powers.
A spokesperson for the senate president said they have not had any “significant discussions” about similar legislation in their chamber.