Former Ohio AG and AG Candidate Write Rebuttal to Yost's Issue 1 Legal Analysis

"The truth is, Yost’s entire analysis is flawed"

Former Ohio AG and AG Candidate Write Rebuttal to Yost's Issue 1 Legal Analysis
Crossman for Ohio: YouTube

Ohio Attorney General Dave Yost recently issued what he claims is a legal analysis of the possible impact of Issue 1, the citizen-initiated Reproductive Freedom Amendment. While AG Yost boldly stated that his assessment “…is not an exercise in advocacy,” his memo detailing the horrible consequences he believes would follow the passage of Issue 1 is nothing more or less than a biased political hit piece that is intended to confuse the voters and weaken support for the amendment as we note in our detailed, extensively researched rebuttal to his analysis which may be read here.

In his memo, Yost states that “Ohioans deserve to know what they are voting on, so I have prepared this legal analysis to make the Amendment’s impacts on Ohio law more understandable.” While purporting to “inform” rather than persuade, Yost’s conclusions are deliberately misleading and reflect his well-known personal opposition to abortion rights. By arguing that nearly all restrictions and regulations on abortion in Ohio will be erased if the amendment is approved by voters, Yost is validating the hyperbolic claims and scare tactics being employed by the extremists who are desperately attempting to defeat Issue 1. That was clearly his intent.

The truth is, Yost’s entire analysis is flawed because it is based on the false premise that if the amendment passes, all state laws related to abortion will be reviewed using what he calls an “exclusive scrutiny test.” There is just one problem: no such standard of review exists in law — Yost has created it out of whole cloth to support his arguments. In reality, the constitutionality of Ohio’s existing abortion restrictions will be determined using the strict scrutiny test — the same standard utilized by courts under Roe v. Wade and by which the restrictions Yost discusses in his analysis were allowed to stand. 

Yost is right about one thing: Issue 1 will invalidate the draconian six-week abortion ban that was imposed hours after Dobbs was decided. Whether the proposed Amendment will reshape other Ohio laws regulating abortion if it is enacted will be a matter for the courts to decide. In light of the fact that most of the restrictions on abortion enacted during the Roe era were upheld by the courts, it is obvious that the AG is purposely misrepresenting their fate should Issue 1 pass. Consider the following:

Parental Consent Laws: Yost first admits that Issue 1 does not address Ohio’s existing parental consent laws, then hypocritically argues that the term “individual” would also include minors which would put those statutes at risk. His concern is unfounded because Ohio’s parental consent law was upheld by the US Supreme Court in 1990 under the same standard that would apply under the reproductive freedom amendment.  There is no reason to believe that parental consent to abortion in its current statutory form, which also includes a complicated judicial bypass process would be erased or weakened if Issue One passes.

Post-viability abortion restrictions: The language of the proposed Amendment expressly states that “abortion may be prohibited after fetal viability” as they are under current Ohio law. Yost tries to muddy the clear legal waters by arguing that Issue 1 will enable physicians to perform abortions post viability by falsely claiming the life or health of the pregnant patient is at risk. Yost ignores the fact any physician who falsifies the risk assessment required by the amendment would risk severe professional and legal sanctions.

Down’s Syndrome Discrimination Law: Yost recognizes that this law was upheld under the pre-Dobbs standard.  Preterm-Cleveland v. McCloud, 994 F.3d 512 (6th Cir. 2021). Because the focus of Ohio’s statute is on the treating physician’s knowledge it is unclear how anyone could opine that this law would be struck down if the Amendment passes.

Method of Abortion, Abortion Waiting Period and Abortion Pill Restrictions: Again, Yost recognizes that these laws were upheld under Roe v. Wade. Once again Yost’s contrary assertions are entirely conclusory and dependent on his fictional “exclusive scrutiny test”. 

Abortion Funding: As recently as 2019, the Sixth Circuit noted that Ohio “has no obligation to pay for a woman’s abortion. Case after case establishes that a government may refuse to subsidize abortion services. Yost’s fear mongering that Ohio would be forced by the amendment to use tax dollars to fund abortion services is not supported by law.

The truth is that nearly all of Ohio’s existing regulations are likely to survive if the Amendment passes as long as they advance a legitimate governmental interest and use the least restrictive means to accomplish their stated purpose—a political and legal principle that is shared by conservative and liberal Ohioans alike when it comes to governmental interference with individual constitutional rights. We urge Ohioans to ignore Yost’s flawed, biased analysis, read the plain language of the commonsense amendment, and focus on the fact that Issue 1 will enable the people of this state to reclaim their reproductive rights from politicians and special interest groups.

Read Yost’s analysis of Issue 1 here.

Read Dann and Crossman’s analysis of Issue 1 here.

Originally published by the Ohio Capital Journal. Republished here with permission.
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