Ohio Supreme Court allows 'unborn child' language to stay in abortion ballot measure

Ohio's Supreme Court ruled late Tuesday that much of the GOP-controlled state ballot board's language to describe a November question about abortion is accurate, dealing a blow to the abortion rights groups that challenged the board's description.

The sharply divided court said only one element of the description is misleading and must be rewritten. The justices ruled that all other elements that were challenged, including the substitution of "unborn child" for "fetus," can remain.

In November, Ohioans will vote on a citizen-initiated amendment that would create a constitutional right to reproductive freedom in the state, which would protect decisions on contraception, fertility treatment, continuing a pregnancy, miscarriage care and abortion up to the point of fetal viability.

The Ohio Ballot Board is tasked with writing the actual words of statewide ballot measures. The wording is supposed to be fair and nonpartisan, without attempts to mislead or deceive voters.

Ohioans United for Reproductive Rights, the coalition supporting the amendment, sued the board after it adopted wording drafted by the Republican Secretary of State Frank LaRose that the coalition said was "a naked attempt to prejudice voters against the Amendment."

LaRose, who is running in the GOP primary to challenge Ohio Sen. Sherrod Brown (D) next year, has publicly opposed the amendment.

But the Supreme Court rejected the argument that the phrase "unborn child" solicits the board's “ethical judgment or personal view."

The lawsuit did not argue that the term “unborn child” was factually inaccurate, the court noted, only that it is divisive. The lawsuit instead said the terms “fetus” and “fetal viability” are more neutral and scientific.  

"But this argument does not establish that the ballot board’s language constitutes improper persuasion," the court ruled. 

Only two of seven justices were in full agreement on the decision. All five others agreed in part, and disagreed in part.

The Ohio secretary of state's office said it was “pleased” by the court’s 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," spokeswoman Mary Cianciolo said in a statement. 

The court ordered the board only to change the phrase “citizens of the state of Ohio” to “the state of Ohio," because it said the wording is misleading; the amendment would regulate actions by the state, rather than citizens.

Cianciolo said the ballot board would quickly reconvene to make the “minor change ordered by the court.”

The ruling comes just six weeks ahead of the election. Last month, voters during a special election overwhelmingly rejected an initiative that would have raised the threshold needed to pass all other ballot measures, making it more difficult to pass the abortion amendment.