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Ohio GOP lost on Issue 1. Now some want to strip power over abortion laws from the courts

Women sing hymns during a rally against abortion at the Ohio Statehouse on September 13, 2023
Jo Ingles
Statehouse News Bureau
An abortion rights protestor holds a sign at a rally at the Ohio Statehouse on June 26, 2022.

A Republican state lawmaker is proposing what’s been titled the Issue 1 Implementation Act, to set a standard for deciding the constitutionality of laws under the new reproductive rights and abortion access amendment approved by voters as Issue 1.  

The draft proposal from Rep. Jennifer Gross (R-West Chester) said state lawmakers would have exclusive authority over implementing Issue 1, with all jurisdiction withdrawn from local and state courts. It also would order the immediate dismissal of lawsuits, and violations by judges would be impeachable offenses.

The idea was initially suggested in an email from the far-right group Ohio Values Voters, which had campaigned against Issue 1, sometimes with disinformation. That email quoted Gross along with three other state representatives: Bill Dean (R-Xenia), Beth Lear (R-Galena) and Melanie Miller (R-Ashland). Language from that email appeared in a statement posted on Nov. 9 at Ohiohouse.gov reads in part: "To prevent mischief by pro-abortion courts with Issue 1, Ohio legislators will consider removing jurisdiction from the judiciary over this ambiguous ballot initiative. The Ohio legislature alone will consider what, if any, modifications to make to existing laws based on public hearings and input from legal experts on both sides."

"It's even more extreme than I expected. A better title would be the Issue 1 Non-Implementation Act," said Steven Steinglass, dean emeritus at the Cleveland State College of Law and wrote the best known book on Ohio’s constitution.

Steinglass said the draft proposal violates the state's constitution in several ways. He said it goes against the new reproductive rights amendment, it violates the constitutional role given to the judiciary to interpret constitutional issues and goes against principles of separation of powers. He said it violates due process at the state and federal level, and he also said it arguably violates equal protection laws.

"So it seems to me that legally it really is and should be a non-starter," Steinglass said. "And I would expect that saner minds will prevail and this will not make it out of either house of the General Assembly, and I'm sure the governor would not sign anything as foolish as this."

"The devil will be in the details because we don't have a piece of legislation to read," said Mark Weaver, a former deputy attorney general and longtime Republican consultant. He's also strongly pro-life and opposed Issue 1.

Weaver said Issue 1 was vague, so the Ohio Supreme Court will have to weigh in.

"They do use the word 'implement' a few times in the summary and that is a power of the legislature," Weaver said. "But if their goal is to remove jurisdiction over the constitution from the Supreme Court, it's not gonna happen. The state constitution doesn't allow it and the State Supreme Court would not uphold it."

There are four Republican and three Democratic justices on the Ohio Supreme Court. All four Republicans have been public with their anti-abortion views. A case involving technical issues related to the ban on abortion after six weeks was argued before the court in September. Republican Justice Joe Deters recused himself, as he had been involved in the case as it made its way to the court from Hamilton County. The visiting judge who sat in for him has also been active with the pro-life movement.

Gross did not return calls, texts or emails seeking comment.

It's unclear how much support the draft proposal has. When asked whether House Speaker Jason Stephens (R-Kitts Hill) agrees with the statement about "removing jurisdiction from the judiciary" that was posted on the Ohio House Republicans' official government website, a spokesperson for Stephens said in a text Saturday: "We're not commenting on this at this time."

Contact Karen at 614-578-6375 or at kkasler@statehousenews.org.