Litigation /

Ohio Supreme Court Declines to Swap 'Unborn Child' For 'Fetus' in Abortion Ballot Measure

The court found one 'lone defect in the ballot language' and ordered the Ohio Ballot Board to replace the phrase 'citizens of the state of Ohio'

The Ohio Supreme Court has ruled a ballot measure that will determine if abortion is recognized as a right may contain the term “unborn child.”

The amendment is set to appear on the ballot in November and will allow registered voters to decide if abortion access is protected until a fetus is viable outside the mother’s womb.

The term was opposed by pro-abortion groups who lobbied for the term “fetus” instead. Five individuals and Ohioans United for Reproductive Rights challenged the language in August. The plaintiffs argued the amendment, titled the Right to Reproductive Freedom with Protections for Health and Safety, misled voters in violation of state regulations.

“That fraught term is in stark contrast to the neutral, accurate, and scientifically accepted terminology that the Amendment itself uses and defines,” the group, identified in legal documents as the realtors, wrote in its initial filing. “The ballot language thus unnecessarily introduces an ethical judgment—at what stage of development a zygote, embryo, or fetus becomes a ‘child’—which is beyond the scope of the measure and about which Ohioans profoundly disagree.”

The court rejected the group’s claims that the term “unborn child” is improperly argumentative and that it “introduces an ethical judgment,” noting that the plaintiffs did not argue that the term is factually inaccurate. 

“Their argument asserts that ‘unborn child’ is a divisive term that elicits a moral judgment whereas the terms ‘fetus’ and ‘fetal viability’ are more neutral and scientific,” wrote the court in its majority opinion. “But this argument does not establish that the ballot board’s language constitutes improper persuasion.”

The term in question appears multiple times in the text of the amendment. Two examples include the phrase, “The proposed amendment would: … Prohibit the citizens of the State of Ohio from directly or indirectly burdening, penalizing, or prohibiting abortion before an unborn child is determined to be viable, unless the State demonstrates that it is using the least restrictive means” as well as the phrase, “Only allow the citizens of the State of Ohio to prohibit an abortion after an unborn child is determined by a pregnant woman’s treating physician to be viable and only if the physician does not consider the abortion necessary to protect the pregnant woman’s life or health.”

In addition to “unborn child,” the plaintiffs objected to other terms including the substitution of “reproductive medical treatment” for “reproductive decisions.” The group argued that “a reproductive decision connotes an individual’s ‘considered determination about any matter related to producing offspring’ while the term ‘treatment’ is the action or way of treating a patient medically or surgically.”

The court did order one revision to the text of the amendment. The Ohio Ballot Board must swap the phrase “citizens of the state of Ohio” for “state of Ohio.” The phrase was ruled to be the “ lone defect in the ballot language.”

“We conclude that the term ‘citizens of the State’ is misleading in that it suggests to the average voter that the proposed amendment would restrict the actions of individual citizens instead of the government,” wrote the court. 

The language of the amendment was drafted by Ohio Secretary of State Frank LaRose, a Republican, whose office praised the state’s highest court for its ruling.

“By rejecting special interest attempts to substitute their own carefully crafted and poll tested language for that of the ballot board, they have ensured Ohio voters will have a full and accurate understanding of the proposed measure when they go to cast their ballots,” Mary Cianciolo, a spokeswoman for the office, said in a statement to the press, per Newsmax.

The ruling was denounced by the Ohio Democratic Party.

“Ohio Democrats are used to these kinds of dirty tricks designed to silence Ohioans,” said Matt Keye, a spokesman for the party, per NBC News. “We’re going to communities across the state to connect with voters and lay out the stakes of the November election.”

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