COLUMBUS, Ohio (AP) 鈥� With Election Day , anti-abortion groups seeking to build opposition to a reproductive rights measure in Ohio are messaging heavily around a term for an abortion procedure that was once used later in pregnancy 鈥� but in the U.S. for over 15 years.
In ads, debates and public statements, the opposition campaign and top Republicans have increasingly been referencing 鈥減artial-birth abortions鈥� as an imminent threat if voters approve the constitutional amendment on Nov. 7. 鈥淧artial-birth abortion鈥� is a non-medical term for a procedure known as dilation and extraction, or D&X, which is already federally prohibited.
鈥淚t would allow a partial-birth abortion,鈥� Ohio Gov. Mike DeWine told reporters recently as he explained his opposition to the constitutional amendment, known as .
鈥淔or many years, in Ohio and in this country, we鈥檝e had a law that said a partial-birth abortion 鈥� where the child is partially delivered and then killed and then finally delivered 鈥� was illegal in Ohio,鈥� the governor continued. 鈥淭his constitutional amendment would override that.鈥�
Constitutional scholars say that is not true and that the amendment would not override the existing federal ban if Ohio voters approve it.
鈥淪o changing our constitution will not affect in the slightest way the applicability of the federal partial-birth abortion ban,鈥� said Dan Kobil, a law professor at Capital University in Columbus, who supports abortion rights. 鈥淚t would be a federal crime for a doctor to violate that ban.”
That’s because the supremacy clause of the U.S. Constitution calls for federal laws to trump state laws, said Jonathan Entin, professor emeritus of law at Case Western State University.
鈥淚f the federal law prohibits a particular technique, then that鈥檚 going to prevail over a state law that might be inconsistent,鈥� he said.
Ohio is the only state this November where voters will decide whether abortion should be legal. But the debate isn鈥檛 happening in isolation. The state has been used as a campaign testing ground by anti-abortion groups after a since the U.S. Supreme Court a constitutional right to the procedure. And next year, abortion rights supporters are planning to put the question before voters in several , ensuring the issue will be central to races .
A D&X procedure involved dilating the woman鈥檚 cervix, then pulling the fetus through the cervix, feet-first to the neck. The head was then punctured and the skull emptied and compressed to allow the fetus to fit through the dilated cervix. Before the federal ban, it was used for both abortions and miscarriages in the second and third trimesters of pregnancy.
DeWine was serving in the U.S. Senate when the was passed in 2003. He voted for the prohibition, which declared a 鈥渕oral, medical, and ethical consensus鈥� that the procedure was 鈥済ruesome and inhumane.鈥� President George W. Bush signed the measure into law with DeWine at his side.
The ban was largely on hold while a played out. The U.S. Supreme Court rejected arguments against the law, upholding its application across all 50 states.
Asked why the governor suggested a federal law he supported would not apply if Ohio changes its constitution, spokesman Dan Tierney said DeWine bases his position on provisions of the U.S. Constitution that prevent the federal government from regulating conduct that has no effect on interstate commerce. Kobil acknowledged that argument, but said it鈥檚 鈥渁lmost certain to fail鈥� if tested, given that the Supreme Court already declared the ban constitutional.
DeWine isn’t the only top elected Republican in the state to warn that the procedure would be revived if the amendment passes on Nov. 7.
In a memo earlier this month, Republican Attorney General Dave Yost said the state鈥檚 laws outlawing abortions through D&X and another procedure, , or D&E, the most common second trimester method, 鈥渨ould both be invalidated and these abortions would be permitted鈥� if the amendment passes. The Ohio Senate鈥檚 Republican supermajority passed a resolution saying something similar.
Entin, of Case Western, said 鈥渢o the extent that the Ohio laws he鈥檚 discussed are also covered by the federal law, it doesn鈥檛 matter,鈥� because federally banned procedures would remain illegal.
Kelsey Pritchard, director of state public affairs for Susan B. Anthony Pro-Life America, whose political arm is a major funder of the campaign opposing the amendment, said the federal ban 鈥渓acks enforcement鈥� under a Biden Administration she described as 鈥渆xtreme pro-abortion.鈥�
鈥淚f it’s not being enforced, if there’s no teeth to it, then the protections need to happen at the state level,鈥� argued spokesperson Amy Natoce of Protect Women Ohio, the Issue 1 opposition campaign. 鈥淥f course, if Issue 1 passed, we won’t have those protections.鈥�
Mae Winchester, a Cleveland-based maternal fetal medicine specialist, said use of the term in the campaign messaging over the amendment is misleading.
鈥溾�楶artial-birth abortion鈥� is a made-up term that only serves to create confusion and stigmatize abortion later in pregnancy,鈥� she said. 鈥淚t鈥檚 not a procedure that鈥檚 described anywhere in medical literature, and so it鈥檚 not considered a medical term or even an actual medical procedure.鈥�
Ohio passed the nation’s first ban on what its lawmakers then dubbed 鈥減artial birth feticide鈥� in 1995, just three years after Ohio physician Martin Haskell debuted the D&X procedure during an abortion practitioners conference. He touted it as a way to avoid an overnight hospital stay and as safer and less painful for women than other methods.
Protect Women Ohio has invoked Haskell鈥檚 legacy in one of its ads. It shows an image of Haskell and describes the procedure he pioneered as 鈥減ainful for the mother and the baby.鈥� The voiceover then calls for a no vote on the amendment 鈥渟o people like Dr. Haskell can’t perform painful 鈥榣ate-term鈥� abortions.鈥�
The spot doesn鈥檛 note the distinction between 鈥減artial-birth鈥� and 鈥渓ate-term鈥� abortions 鈥� both non-medical terms coined by anti-abortion advocates 鈥� nor reference the federal ban.
Mike Gonidakis, president of Ohio Right to Life, said because of protections provided to individuals and abortion providers in the amendment, 鈥淭he ad withstands any scrutiny.鈥�
Haskell retired from active practice two years ago. He declined comment. But he has donated to the main group supporting the constitutional amendment, Ohioans United for Reproductive Rights.
Pro-Choice Ohio Executive Director Kellie Copeland called talk of 鈥渓ate-term鈥� and 鈥減artial-birth鈥� abortions a scare tactic.
鈥淚ssue 1 allows for clear restrictions on abortion after viability that protect patients鈥� health and safety,鈥� she said. 鈥淭hese situations, when a woman needs an abortion later in pregnancy, are incredibly rare and heartbreaking for families.鈥�
Ohio hasn鈥檛 had an abortion of any type performed after 25 weeks鈥� gestation since 2018 and only four have been recorded since 2013, according to compiled by the state Health Department. Abortions between 21 and 24 weeks鈥� gestation, a span that encompasses the outside limit of Ohio鈥檚 current law, totaled 576, or 0.6% of the total, over that time.
Pritchard, of Susan B. Anthony Pro-Life America, attributed the low numbers to the state’s existing abortion restrictions.
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Associated Press reporter Christine Fernando in Chicago contributed to this report.
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