The Thomas More Society, the non-profit law firm that recently scored a huge win against Biden’s DOJ in the Mark Houck case, submitted a last minute brief last Friday arguing that the Ohio Ballot Board erred when it unanimously approved the Reproductive Freedom Amendment for circulation.

The Thomas More Society explained in its amicus brief, that the Ohio Ballot Board did not do its job and failed to uphold the single-subject rule.

The single-subject rule requires proponents of an amendment to limit the ballot issues presented to the voters to one issue at a time. The reason for this is to avoid the logrolling of popular issues along with less popular ones in an attempt to deceive and confuse the voters.

The Ohio Reproductive Freedom Amendment includes such different rights as the widely accepted rights to contraception and fertility treatment, as well as the rights to continue with a pregnancy and to receive medical treatment during a miscarriage, but it includes the highly controversial “right” to kill a developing baby for any reason and at any point before birth, as well as the implied right for minors to submit to sex changes.

Before proponents of the amendment are allowed to collect signatures, the Ohio Ballot Board is supposed to analyze the text of the amendment to determine whether it really is one amendment, or a compilation of amendments crafted to deceive and logroll different subjects into one.

Attorney Eugene Canestrero, special counsel to the Thomas More Society, made a compelling argument that the Ohio Ballot Board failed in its duty to the voters when it failed to even discuss the single-subject rule.

The Proposed Amendment embodies impermissible “logrolling” by joining
together for a single vote non-controversial subjects that voters may feel
compelled to support with the controversial issue of abortion in effort by the
Amendment’s proponents to generate a coalition of support and obfuscate
the matters at issue.

Amicus Brief of Thomas More Society

Although the single purpose of the meeting of the Ballot Board on March 13, 2023, was to discuss whether the proposed amendment contains a single subject, not a single member of the Ohio Ballot Board discussed the issue at all.

Ohio Secretary of State Frank LaRose, a Republican who chairs the Ohio Ballot Board, limited the “discussion” of the amendment to pointing out that the sole purpose of the Board is to determine whether the proposed amendment includes only one “change one amendment to the Ohio constitution” but he quickly proceeded to wash his hands of that responsibility by saying the subject matter involved “deeply held beliefs” that were up to the people of Ohio to decide.

The Legal Case Against the Ohio Ballot Board

Thomas More Society attorneys accused the proponents of the amendment of “cynically burying the lede” by burying the real purpose of the amendment, abortion on demand, under a laundry list of unquestioned existing rights. By implication, they maintain that the Ohio Ballot Board failed in its duty to protect the Ohio voters from such deceptive tactics.

The list in the Proposed Amendment also includes “continuing one’s own pregnancy”—a
wholly unquestioned right—and then offers another protection that no reasonable person could deny: “miscarriage care.” Only in the fifth item does the Proposed Amendment get to its intended substance, namely protecting “abortion.” Thus, by cynically burying the lede, the Proposed Amendment groups under one category actions that are literally opposites (continuing a pregnancy versus terminating it). In so doing, it ties together steps aimed at saving a life, such as miscarriage care, with those that are taken to bring about its destruction through voluntary abortion. 

In a 2005 opinion, the Ohio Supreme Court reiterated that the purpose of the single subject rule was to prevent “deceit of the public by the presentation of a proposal which is misleading or the effect of which is concealed or not readily understandable . . . [and] afford the voters freedom of choice and prevent ‘logrolling’ or the combining of unrelated proposals in order to secure approval by appealing to different groups which will support the entire proposal in order to secure some part of it although perhaps disapproving of other parts.” State ex rel. Willke v. Taft 2005.

Next Steps

After the March 13 meeting of the Ohio Ballot Board, Pro-abortion volunteers and paid circulators have begun collecting signatures to put the Amendment to a popular vote on the November 2023 election ballot.

In Ohio, the number of signatures needed to place a measure on the ballot is based on the total number of votes cast for the governor in the preceding general election. The Reproductive Freedom Amendment needs to gather 413,488 valid signatures, which is equivalent to 10% of the votes cast in the last gubernatorial election. If the amendment will be on the November 7, 2023 ballot, the signatures must be turned in by July 5, 2023.

if Cincinnati Right to Life succeeds in its lawsuit, against the Ohio Ballot Board, the most likely outcome would be that the amendment would have to be broken up into different individual amendments for the different topics. If that happened the time necessary to collect signatures would be limited, and it is possible that the amendment would not make the deadline for 2023, and would then have to be placed on the 2024 ballot.

Although Democrats see abortion as a winning issue and would love to have abortion be at the center of debate during the 2024 presidential election, there is a good chance that the Ohio legislature will amend the constitution before then in order to increase the bar for a constitutional amendment, from a simple majority of 50% plus 1, to a 2/3 or 3/4 vote. That is why abortion proponents believe 2023 might be the last opportunity to pass abortion on demand through a popular vote in Ohio.

The current case was brought by Cincinnati Right to Life and is currently before the Supreme Court of Ohio on an expedited track. A decision is expected this week from the seven member court that holds a narrow Republican appointed majority of 4 to 3.

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