Conservatives are making the Ohio abortion amendment about trans rights

Abortion opponents in Ohio are spending millions on attack ads taking aim at a proposed November ballot measure that would enshrine abortion rights in the state constitution.

But their attacks focus on two other issues: transgender rights and parental rights.

Officials with the group behind the ads, Protect Women Ohio, argue that the proposed amendment is intentionally worded to be interpreted to allow minors to obtain abortion care and undergo gender-affirming surgery without parental consent or notification.

Nonpartisan experts say the ads are inaccurate and misleading, while reproductive rights advocates argue that they are misdirection designed to distract voters from protecting abortion rights, an issue on which the public does not side with the anti-abortion movement.

The proposed November measure would allow voters to decide whether to insert language in the Ohio Constitution that enshrines the right of every person “to make and carry out one’s own reproductive decisions,” including, “but not limited to,” decisions about contraception, fertility treatment, continuing one’s pregnancy, miscarriage care and abortion. It also specifies that the state shall not “burden, penalize, prohibit, interfere with, or discriminate against” those rights.

Organizations on both sides of the abortion divide have allocated tens of millions of dollars in ads. Officials with the reproductive rights coalition supporting the amendment have said they plan to spend at least $35 million through November — more than groups opposed to it.

But Protect Women Ohio, the largest anti-abortion spender, has used its ads to argue that the proposed amendment would allow minors to undergo “sex change surgery" without their "parents’ knowledge or involvement.” The group has so far committed $25 million for ads — some of which began running in March — that will run through the November election.

The ads claim that the “not limited to” wording is an avenue for abortion-rights advocates to broaden the measure to provide protections for a wider host of culture war issues, some of which — like the question of allowing minors to undergo gender-transition surgeries without parental consent — polling indicates voters would be more likely to reject.

In those ads and on its website, Protect Women Ohio alleges that decisions about a person's gender identity, including gender reassignment surgery, are an integral part of “reproductive decisions” — a key phrase in the proposed amendment.

It also takes aggressive aim, in particular, at the American Civil Liberties Union of Ohio — a civil rights organization that works on a wide variety of issues, including transgender rights. Protect Women Ohio's ads and statements argue that the group’s presence in the pro-amendment coalition is evidence of a push beyond abortion rights.

But there is no mention of transgender rights or parental rights in the amendment. Furthermore, nonpartisan constitutional law experts say there is virtually no way the language could be legally interpreted to apply to most topics not specifically mentioned in the measure’s language — even when the “not limited to” phrase is considered.

“Opponents have latched on to the ‘but not limited to’ language to say that this could provide a constitutional right to, among other things, gender-affirming care rights. That’s not a legally persuasive argument,” said Jonathan Entin, a constitutional law expert and professor emeritus at the Case Western Reserve School of Law in Cleveland.

Entin said that over “decades, maybe centuries,” courts have developed rules about interpreting legal documents that include lists — including ones that have “but not limited to” language — dictating that such language covers things considered only “plausibly related” to the specific items mentioned.

“Gender-affirming care is a big stretch from the items that are in the list,” Entin said.

Rather, Entin and abortion-rights supporters said, opponents’ argument is a political one, possibly designed to take advantage of voter attitudes that are far less supportive of providing transgender rights to minors than they are of protecting abortion rights.

Kellie Copeland, the treasurer of Ohioans for Reproductive Freedom, one of the groups behind the amendment, said: "They’re pushing a false narrative about our campaign. None of the allegations being claimed in these advertisements are true. Our reproductive freedom amendment does not impact care related to gender."

Some conservative legal scholars, however, argue that that gender-affirming care is plausibly related to reproductive rights.

“The proposed Ohio amendment is a measure establishing a sweeping 'right to make and carry out one's own reproductive decisions,'" Frank Scaturro, vice president and senior counsel at the conservative Judicial Crisis Network said. "A decision to pursue a procedure regarding any aspect of one’s reproductive system is plausibly related to that statement of right."

There is a reason anti-abortion groups may want to talk about something other than abortion: Abortion access is popular — far more so than expanding transgender rights, for example.

Public polling has found that about 59% of Ohio voters support enshrining abortion rights in the state constitution.

By comparison, that poll, conducted last fall by Baldwin Wallace University, near Cleveland, found that only 25% of voters said they strongly or somewhat supported laws “allowing medical professionals to provide someone younger than 18 with medical care for a gender transition.” Sixty-six percent of respondents said they were strongly or somewhat opposed.

Amy Natoce, a spokesperson for Protect Women Ohio, said in a series of emails that the group’s messaging was “well-founded,” alleging that the proposed amendment was “intentionally written using extremely broad language.”

Natoce said it was “no accident” that “the words ‘woman’ and ‘adult’ appear nowhere in the amendment.”

“The language means minors can obtain abortions and other life-altering medical procedures,” she wrote.

In a separate email, Natoce accused the ACLU and its Ohio affiliate of having a "long and well-documented history of attacking parental rights, pushing trans ideology in classrooms, and encouraging sex changes for kids."

The ACLU of Ohio is one of eight founding partners that formed the Ohioans for Reproductive Freedom coalition. It contributes "time and resources" — like funding, personnel, door-knockers and attorneys — said Gabe Mann, a spokesperson for the coalition.

Asked about the attacks, Jocelyn Rosnick, the ACLU of Ohio's policy director, said in a statement that "the ACLU has spent over a century protecting personal freedoms."

"These freedoms are exactly what groups like this are attacking right now so it’s not surprising they’re attacking the ACLU along with the protections Ohio families need," Rosnick said.

Meanwhile, Protect Women Ohio has used the same strategy in ads urging voters to pass an August ballot measure that could make it harder for abortion-rights supporters to amend the state constitution in November. The Aug. 8 ballot measure — known as Issue 1 — will ask voters to decide whether to raise the threshold of support required for future state constitutional amendments to 60%. Currently, just a majority is needed.

In the year since the U.S. Supreme Court overturned Roe v. Wade, Republicans across the country have largely struggled to talk to voters about abortion rights.

For example, abortion-rights advocates enjoyed a clean sweep of victories last year in the six states (even in conservative ones like Kentucky and Kansas) where they placed referendums on the ballot that — like the proposed Ohio measure — proposed enshrining reproductive rights in state constitutions.

Reproductive health care advocates said the outcomes have forced abortion opponents to shape the November election around a separate topic.

“These groups have had 50 years to make their argument for extreme bans on abortion, but people aren’t buying it. That’s why they’re spending millions to spread these lies to Ohioans,” Copeland said.

Her group, together with Protect Choice Ohio, submitted the required number of signatures to place the proposed amendment on the ballot this month.

State officials are still reviewing the signatures for duplicates and other potential errors, and Republican Secretary of State Frank LaRose has until Tuesday to formally sign off on whether the measure makes the ballot.

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