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Checking the facts behind the most recent anti-Issue 1 advertisement starring Ohio Gov Mike DeWine

We spoke one-on-one with the governor and balanced his claims with insight from a constitutional law expert from Case Western Reserve University.

CLEVELAND — We are less than two weeks away from the Nov. 7 general election, and supporters and opponents of Ohio Issue 1 have spent tens of millions of dollars in advertising.

Issue 1 is a constitutional amendment that would enshrine abortion rights in the Ohio Constitution up to the point of fetal viability. The latest ad from opponents of Issue 1 comes from the group Protect Women Ohio, and features Ohio Gov. Mike DeWine and first lady Fran DeWine.

Watch the ad below:

To fact-check claims made in the ad, 3News Investigates spoke one-on-one with the governor and balanced his assertions with insight from an area constitutional law expert.

Claim 1: Issue 1 would take away parental rights

VIDEO: 3News Investigates: Fact-checking Ohio Gov. Mike DeWine's claims against Issue 1
WKYC Channel 3

The language of Issue 1 states that, "Every individual has the right to make and carry out one's own reproductive decisions, including but not limited to decisions on:

  1. contraception;
  2. fertility treatment;
  3. continuing one's own pregnancy;
  4. miscarriage care; and
  5. abortion."

DeWine pointed to the use of the word "individual" when assigning the right to one's own reproductive medical treatment. He contends that "individual" could apply to both adults and children.

"Those who wrote the language wrote it as broadly as they could write it, and words do matter," the governor told 3News. "It would override the parental consent law that we now have on the books in regard to a minor who wants to get an abortion."

Currently, Ohio law requires those under the age of 18 to have parental consent or court permission for an abortion. However, backers of Issue 1 call DeWine's claim false.

"The amendment will not change parental consent laws. Period," Dr. Lauren Beene, a pediatrician and spokesperson for Ohioans United for Reproductive Rights, said. "The Constitution of Ohio and the Constitution of the United States don't, in practice, treat minors in the same way as they treat adults."

Beene used the analogy of the Second Amendment, which gives "people" the right to bear arms. However, minors do not have the same rights to purchase a gun, she explained.

3News Investigates turned to Jonathan Entin, professor emeritus of constitutional law at Case Western Reserve University, for more insight. Entin does not believe that the constitutional amendment would supersede current parent consent laws.

"Issue 1 doesn't explicitly mention parental consent," Entin stated. "It is not likely that Issue 1 would override Ohio's parental consent law. The U.S. Supreme Court upheld that law in a 1990 case and a similar Pennsylvania law in 1992. Those decisions came down long before Dobbs, at a time when there was a strong federal constitutional right to abortion.

"If the parental consent law was valid when we had a strong federal constitutional right to abortion, it is hard to see why the parental consent law would violate a strong state constitutional right to abortion as reflected in Issue 1."

Claim 2: Issue 1 would allow an abortion at any time during pregnancy

VIDEO: Fact-checking a Protect Women Ohio anti-Issue 1 ad
NBC4 Columbus

The amendment says the state would be allowed "to restrict abortion after fetal viability, except when necessary to protect the pregnant patient's life or health." It would be up to lawmakers to shape those restrictions after viability. 

Currently abortions are legal up to the point of fetal viability, which is anywhere between 22 to 24 weeks, with the exception to save the life of the mother.  However state legislators have passed a six-week ban on abortion, with no exceptions for rape or incest. The law is currently on hold pending an appeal to the conservative Ohio Supreme Court. Should Issue 1 fail, legal experts expect the conservative high court to proceed with rulings to allow the six-week ban to take effect.

However, should Issue 1 pass and abortion access becomes a constitutional right, we asked DeWine whether we can expect Republicans in the General Assembly to move quickly to enact more restrictions on abortions after fetal viability, which the amendment would allow.

"I don't think that they will be able to," DeWine answered. "I think it's very clear from this constitutional amendment that abortion can occur at any point. It says in the language that you can have restrictions after viability, but then it goes on after that and talks about the health of the mother."

DeWine believes the word "health" is too vague.

"It can be concern about income, it can be a concern about the number of children that you already have — any number of things." he said, citing previous U.S. Supreme Court decisions.

But Entin disagrees.

"I'm not sure whether Gov. DeWine is correct about what the U.S. Supreme Court has said," he explained. "But more to the point, what the U.S. Supreme Court might have said about the meaning of 'health of the mother' doesn't necessarily bind the Ohio Supreme Court's interpretation of the Ohio Constitution,."

Entin notes that it would be up to the Ohio Supreme Court to interpret what "health of the mother" means, and currently, there is a 4-3 Republican majority on the state's high court.


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