Ohio Issue 1: What would the amendment mean for abortions later in pregnancy?

Abortion opponents are campaigning against a November ballot measure in Ohio by saying it would allow dangerous abortions up until the moment of birth. Abortion rights advocates contend they are politicizing a rare, often tragic scenario to scare voters.

Take Sen. Theresa Gavarone, R-Bowling Green, who called the proposed constitutional amendment an "abomination" during a recent Ohio Ballot Board meeting. "Fully healthy, viable babies at seven, eight and even nine months can, and absolutely will be, aborted," she said.

“All due respect, that’s BS," argued Kellie Copeland, executive director of Pro-Choice Ohio, which backs the constitutional amendment. “There are very few instances where a patient requires an abortion later in pregnancy and when they do, that is a deeply personal decision with very complex factors that have to be taken into account, ones that no politician or judge should be involved in.”

So, what would the measure actually do? The proposed amendment on Ohio's November ballot would allow abortions after fetal viability, typically about 24 weeks gestation, to save the pregnant patient's life or health − a decision that would be made by the patient's treating physician.

For context, abortions after 21 weeks gestation, about midway through the second trimester, are rare in Ohio and across the nation. Here are some reasons why:

• Abortion procedures are more complex and thus more expensive later in pregnancy. A third-trimester abortion can cost between several thousand dollars and up to more than $25,000, which isn't covered by all insurance, according to a 2022 study from the Advancing New Standards in Reproductive Health at the University of California San Francisco.

• Fewer doctors perform abortions later in pregnancy, so access to the procedure is limited. A 2014 study found 95% of clinics performed abortions at eight weeks but that figure dropped to 16% of clinics that performed abortions at 24 weeks.

• Many states ban or limit abortion after a certain gestational point. In Ohio, doctors cannot legally perform an abortion after 21 weeks and six days. A judge temporarily blocked the state's ban on doctors performing abortions after cardiac activity is detected, which is about six weeks after the patient's last period.

• Some abortions are performed in response to fatal fetal abnormalities detected later in pregnancies, and these conditions are rare.

• Public opinion opposes abortions later in pregnancy, so there is a stigma attached. Americans were twice as likely to say abortion should be illegal after 24 weeks gestation (43%) than legal (22%) with the remainder saying it depends or timing doesn't affect their opinion, according to a March 2022 Pew Research Center poll.

Are people getting abortions later in pregnancy in Ohio now?

In 2021, 156 abortions were performed in Ohio at 21 weeks or later, representing 0.7% of all abortions that year, according to the most recent Ohio Department of Health data. The state does not report specifics beyond that, so there are no details on which week these occurred.

Current Ohio law offers an exception for abortions later in pregnancy, but it's complicated. Ohio doctors, after being charged with the crime of performing an illegal abortion, can defend themselves in court by proving the procedure was needed because of "an immediate threat of serious risk to the life or physical health of the pregnant woman."

Why do patients have abortions later in pregnancy?

Those who study abortions later in pregnancy say there are two main reasons patients have them: problems accessing abortions earlier in pregnancy or new information that comes to light later in pregnancy.

Patients delay having an abortion because they need to save up money, arrange time off work or set up childcare and transportation, said Danielle Bessett, a University of Cincinnati professor of sociology and co-principal investigator of the Ohio Policy Evaluation Network, which researches reproductive health.

"If people were really concerned about making sure people could have their abortions earlier, then they would make access easier," said Bessett, noting these barriers disproportionately impact patients already struggling to access healthcare because of race, poverty or where they live.

Other patients seek an abortion later in pregnancy because of new information, such as a serious health issue for themselves or the fetus, said Katrina Kimport, a professor at the University of California, San Francisco who researches abortion access.

"When somebody is pregnant and wants to be pregnant and there's no evidence there's a serious fetal health issue, it doesn't make sense for them to seek an abortion earlier in pregnancy," Kimport said. "There are things that you just can't know earlier in pregnancy."

And in rare circumstances, patients don't realize they are pregnant until it's too late to get an abortion in their state. Women who sought later abortions were much more likely than first-trimester patients to have been eight or more weeks into their pregnancy before learning they were pregnant (68% versus 12%), according to a 2016 University of California, San Francisco study researching the impact of denied abortions.

"You can't have an abortion if you don't know you need one," Kimport said.

Do state restrictions prevent or limit abortions later in pregnancy?

Abortion opponents say abortions later in pregnancy would increase if not for laws banning the procedure.

"Anything legalized, you can expect to increase, whether the number is high or not," said attorney Frank Scaturro, with the Judicial Crisis Network, which has donated to the anti-abortion amendment campaign. "Even if that number amounts to a few hundred, that's a pretty grave thing."

But even in states with no limits on abortion, the number of abortions performed later in pregnancy remains low.

Colorado, which has no gestational limit on abortions, reported 170 abortions performed at 21 weeks gestation or later, which was 1.5% of all procedures in 2021. Of those, 35 abortions occurred after 28 weeks gestation, according to state health department data.

Oregon, which also has no limits on when an abortion can take place, reported 132 abortions after 21 weeks, or 1.9% of all procedures in 2021, according to state health department data.

Nationwide, 4,382 abortions were performed at 21 weeks or later in 2020 − 0.9% of all abortions, according to the most recent numbers available from the U.S. Centers for Disease Control and Prevention, which does not include data from California, Maryland or New Hampshire.

In Ohio, lawmakers limited abortions after 20 weeks gestation in 2016. The following year, abortions performed at 21 weeks or later dropped from 140 to 90, but by 2021 the figure had risen to 156, according to state health department data.

Kimport, who studies abortion access, said the need for abortions later in pregnancy will never completely go away because of fetal anomalies and health risks detected after the first trimester. But eliminating barriers to abortion could reduce the number of abortions later in pregnancy because of delays, she said.

"Is this a number that's being kept down because of a lack of availability? I actually think the lack of ability is what's contributing to it being higher than it would be if it were only people who needed an abortion because of new information," Kimport said.

Under the proposed amendment, could someone have an abortion later because of their mental health?

The proposed amendment would allow abortions after viability “if, in the professional judgment of the pregnant patient’s treating physician, it is necessary to protect the pregnant patient’s life or health.”

Abortion opponents say health could mean anything: "Courts have said health means financial, mental, economic, so now we have broad, on-demand abortion in this state," said Mehek Cooke, a Columbus-based attorney who opposes the amendment.

"It gives the appearance of providing protections for the unborn, but that is a major loophole saying that it is up to each individual abortionist to determine on a case-by-case basis, the point of viability," said Amy Natoce, spokeswoman for Protect Women Ohio, the group opposing November's Issue 1.

The Michigan reproductive rights amendment, which voters passed in 2022, expressly listed "mental health" as a reason that abortions could be performed later in pregnancy. Ohio's measure does not.

Copeland said it's offensive that abortion opponents would assume doctors and patients will take liberties with the language to proceed with abortions that aren't medically necessary.

"When I hear that from our opponents, what I hear is that they think that doctors are going to lie, that patients are going to lie, that they don't believe people face these situations and furthermore they don't care," Copeland said.

Are abortions performed up until birth?

Abortion opponents often argue that reproductive rights advocates want to legalize abortion up until the moment of birth. Copeland said that just doesn't happen.

"That's not medically accurate. It's not intellectually honest," she said. "Our opponents like to create this really false narrative that somehow an abortion that happens later in pregnancy is because someone just decided they didn't want to be pregnant anymore, and that's just not how it happens in real life."

The U.S. Centers for Disease Control and Prevention only lists abortions performed at 21 weeks or later, which is about 1% of all procedures. The federal government does not report which week each procedure occurred. A 2014 review of 1,005 abortions performed because of fetal disorders found the median gestational age was 24 weeks.

Jessie Balmert is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.

This article originally appeared on Cincinnati Enquirer: What would Ohio Issue 1 mean for abortions later in pregnancy?