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At OHEA.org The decision that anti-abortion advocates have hoped for and abortion rights activists have dreaded could be just weeks away.

According to a leaked draft of majority opinion from the US Supreme Court.

An analysis of how a decision to turn the regulation of abortion back to the states would turn out here this week in the state of Ohio, Welcome to the state of Ohio.

I'm Karen Kasler.

A leaked draft majority opinion that suggests the end to legal abortion throughout the United States has state lawmakers, including those in Ohio, preparing for the future.

In the opinion in the US Supreme Court case, Dobbs versus Jackson Women's Health Organization first published by Politico Justice Samuel Alito, writes that the 1973 landmark Roe versus Wade case imposed what he called a highly restrictive regime on the entire nation and that the Constitution makes no reference to abortion.

Alito says the 14th Amendment has been held to guarantee some rights that are not mentioned in the Constitution.

But those rights must be, in Alito's words, deeply rooted in this nation's history and tradition and that abortion doesn't fall into that So the draft opinion states the states would set the rules on abortion regulation.

Republicans in Ohio passed a six week abortion ban in 2019.

If Roe is indeed overturned.

State officials say they'll seek to lift the hold on that ban, which was ordered as it was challenged in court and a more restrictive total ban on abortion tied to the overturning of Roe known as a trigger ban, is being considered, which would only have exceptions for the life of the woman.

I started the overview of the issue this week with a conversation with my gun advocates who was the president of Ohio Right to Life.

He said he's cautiously optimistic about the draft opinion.

You know, as chief justice Roberts said the day after the leak happened, he goes, Yes, indeed, that is a legitimate draft.

It's true.

It's not a forgery.

But opinions could be modified.

They could be change one word, one sentence, an opinion could alter what we hope to have happen, which is to allow each state to decide the abortion issue, of course.

So if Roe is overturned, but then there's some additional modified language that could have huge implications for each state and what they could or could not do.

So we're cautiously optimistic.

Obviously, if the draft looked a little different, we would not be as happy as we are today.

But until that final draft released, we just need to keep working hard.

You still think it's going to be a majority opinion, though, that it's going to overturn or at least turn Roe back over to the states, knowing what we know?

I don't believe any of the five justices of four justices that joined Justice Alito are going to be swayed by protest or peer pressure or any types of outside pressure.

You know, they voted apparently on a draft, and I believe they're going to stick to it.

Is there anything in this ruling that suggests constitutional rights for the fetus, which has also been known as fetal personhood?

Is that something that Ohio Right to Life supports?

You see anything in that draft opinion that suggests that not now at this time?

Again, the draft is, you know, let's be cautious here.

It's a draft, but nothing in there addresses the personhood issue.

I'm on record saying that we need to take the incremental approach.

Let's overturn Roe first.

Let's let each state set their own policies.

You know, that might take one year, five years or longer or less.

And then once we do that, we can look at different issues as it relates around the abortion issue.

But let's take one step at a time.

Critics of the opinion, including President Biden, have said that they're worried that it could be used to eliminate other rights established and precedent, same sex marriage, interracial marriage, birth control to the right to privacy, which they also say could affect other things, potentially such as private data and health records.

Alito wrote in this draft opinion, nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion, but other cases involving those rights were mentioned in that leaked opinion.

And if one precedent is overturned, could others be overturned as well?

So you've said that you think it's fear mongering to talk about other rights that could be overturned here.

But shouldn't people who are concerned about those rights be worried?

Well, so President Biden lives in the court of public opinion.

And as all due process, all presidents do, of course.

But in the court of law, when the Supreme Court speaks in black and white and they're specific in their decision saying this only applies to acts, whatever it may be, that's all it applies to.

And then the lower courts, district court, court of Appeals can't expand that because the court has spoken, the highest court saying, no, this decision relies only on this case abortion.

So what the president and members of his party are doing in the House and Senate, Sherrod Brown and others are trying to build more momentum with pro-choice people to get more protests out there by what the words I use fear mongering because that's not the case.

If Justice Alito said, well, this could apply to other things, too, then President Biden absolutely would be justified in saying those things.

But he did it.

Justice Alito, in the draft opinion said no, only this issue and this issue, only Ohio lawmakers seem likely to pass a trigger ban, a so-called trigger ban that would make abortion illegal if Roe falls.

Well, that would make abortion illegal in Ohio.

Which doesn't mean it wouldn't happen.

It would just be illegal.

I mean, robbery and murder and speeding and shoplifting.

They're all legal or they're all illegal, but they still happen.

Shouldn't the goal be to make abortion not something that anyone would consider?

And if it has to be done, it should be safe.

If it's medically necessary, I mean, you've made that argument when it comes to abortion clinics needing transfer agreements to go to hospitals.

So shouldn't the goal be to make abortion unnecessary something that people wouldn't even be considering?

But when it is medically necessary to save the life of the woman, it's safe?

Yeah, well, we can't legislate morality as it relates to changing hearts and minds.

We need to continue to work to change hearts and minds, whether it be abortion, murder, robbery, the other felonies you mentioned.

But in order to set a standard for what can and cannot happen in Ohio, we have to pass a law, of course.

But changing hearts and minds is a lot different than passing a law.

So what we're saying in Ohio is if the Ohio Right to Life Trigger bill is signed by Governor DeWine, which we believe will happen within the next 30, 60 days or so, that we're going to have a standard in Ohio.

And you're right, a woman can still get in the car and drive a car across the border to Pennsylvania.

She can get in her car and drive to another state that allows abortion and still have that abortion.

We're not naive to think that we're ending abortion as we know it, but what we're doing is we're going to eliminate the current abortion clinics in Ohio.

We're going to have men how that's happening here in Ohio.

And the good news is, Karen, is that we have amazing social services in our state right now.

Ohio, Right-To-Life was the only conservative organization that supported Medicaid expansion when our former governor, John Kasich came out.

It was the right decision.

Now it's the right decision today.

If you look at our two year budget, which you are very astute at doing, I watched your program.

You know, you can see all the money that's being spent to help low income, middle income, whatever income are, to help women to make sure if they're an unintended pregnancy, they have the services they need.

While you're here, I have to ask you about a case that you and a group of fellow Republican voters filed to move legislative redistricting away from the Ohio Redistricting Commission, which was in an impasse on this issue.

When you filed this lawsuit and into a federal court, a panel of three federal judges has ruled that it will implement the third set of maps passed by Republicans on the commission if there are no maps that are passed and ruled unconstitutional by May 28, which is what you asked for it maybe not by May 28th, but you asked for that third set of maps, those maps, which are also the same ones that were just submitted by four of the five Republicans on the redistricting commission as their fifth attempt at legal maps.

They were ruled unconstitutional back in March.

Now, you're a former deputy attorney general, so you have a respect for the rule of law and the Constitution.

Does it bother you that the state is potentially going to go forward with legislative primaries and elections with maps that have been ruled unconstitutional?

A couple of things.

Big question.

First of all, our lawsuit and I was deposed and testified in federal court that we didn't ask for a specific map.

In fact, I was asked directly what maps you prefer.

I said in my and you can see in the court documents, we don't care, you know, current maps, map, one, two, three or four.

We just want a map.

Then I was asked, what date do you want?

And I said, we don't care.

Just give us a date.

We want to be able to vote.

We need to know who are nominees are Democrats and Republicans, not just for my confidence in the seven plaintiffs, but for all Ohioans, liberals, conservatives, men, women.

We need to have a map.

And that's what we asked the court to give us a map item.

I didn't have a pen in my hand.

I didn't draw any maps.

And I don't have a preference for any of the maps for that matter.

But it appears, as you said in the court documents, that's map three.

Now, keep in mind, Karen, and that decision that the federal judge ruled in a unanimous fashion, it was that they said, hey, you have Supreme Court, this strict proportionality standard you're using is nowhere in the Constitution.

So when the Ohio Supreme Court has ruled, this is my personal opinion, that these maps are unconstitutional, the federal courts, which are over top of the Ohio Supreme Court, said you're using a standard that's not in the Ohio Constitution.

So if you if you take that for what it's worth from the federal court, it's claiming that they're unconstitutional might not be the right way of looking at it.

If we use the standard of, look, that they put a map together that draws it fair and evenly and according to the Constitution, and maybe it is, you know, maybe it's not, but maybe it is.

When you said unanimous, to be clear later on, the decision was two of the three judges said that those maps would be implemented on May 28.

Correct.

At the at the end, Judge Martelli broke off and said he wanted to go in a different direction.

But the three judge panel unanimously said we need to step in so that they were unanimous, saying we need to do something.

They didn't say no, let you guys go figure it out.

Their House, Supreme Court and the district commission, they said unanimously, we three need to stop in.

We're stepping in.

But by May 28th and that was the date they picked.

We didn't ask for that.

But that has to be concerning to conservatives, especially that the federal court is involved in state elections.

You know, you don't want that to happen.

You certainly don't because we have states rights.

And whether it be abortion or whatever the issue is, and we believe in that.

But unfortunately, we have come at an impasse where we can't have two of the three branches of government work together.

So we had to protect our constitutional rights to vote, to have freedom of assembly, freedom of speech.

And we had to go to the federal courts because in Ohio, they couldn't get their act together.

I also spoke this week with Democratic Representative Jessica Miranda of Forest Park near Cincinnati, who along with Representative Michelle Laporte, Hagan of Youngstown, Senator Nikki Antonio of Lakewood, and Senator Sandra Williams of Cleveland have proposed a constitutional amendment that would guarantee the right to abortion in Ohio.

I am a firm believer that this is a space that government should have no say in.

This should be a decision, a private health care decision between a woman or a pregnant person and her health care professional.

This is not a space that extremist legislators or a conservative wing of the extremist Supreme Court in this nation should interfere in and you know, as a sexual assault survivor myself, I couldn't even imagine introducing something like the Heartbeat Bill or supporting something like the Heartbeat Bill.

When we now have this leak.

Right.

That we know Roe versus Wade may be something that's overturned in this country and not even taking into account any of those kinds of exceptions.

Right.

There's no exceptions for rape.

There's no exceptions for children who are survivors of sexual abuse.

I mean, what do you tell the 13 year old little girl who is getting drugged and raped every day by her father?

Right.

And that is a real story.

I hear stories.

Ever since my own story came out on the front page, I'm hearing stories from all corners of the state.

And those are realities for girls and women.

And pregnant people all across the state.

And this is simply just not something we can stand for.

We can't stand for punishing women and pregnant people.

We can't stand for criminalizing health care.

I mean, that is just it's just an extreme government overreach.

And that is what our legislation seeks to do is to guarantee these reproductive rights and enshrine them in the Ohio Constitution.

On that note, that legislation, you and three other Democratic women in the legislature are working on the other side of the issue, proposing a state constitutional amendment that would legalize surgical and medication abortions and to put into law the right to access and use over-the-counter and any other contraceptive devices and medications.

It would have to pass the House and Senate before voters could vote on it.

You can't have much hope, though, that it would, considering that there is a trigger ban that would overturn abortion immediately if Roe versus Wade is overturned and there could even be an effort to go further into so-called fetal personhood Yeah, it takes three fifths of each chamber, both the House and the Senate.

We do not have delusions of grandeur in the current political makeup of the state House in the state legislature.

However, this is a point that needs to be made, right?

Someone has to stand up for women and pregnant people all across the state and let them know that there are women who are fighting for them in their statehouse.

Right.

I mean, this we already know that the overwhelming majority of Ohioans support access to safe, legal abortion and reproductive of health care.

Right.

So why wouldn't my extremist colleagues jump on the boat to put this on the Constitution, you know, to a vote essentially for the Ohio's Ohioans to choose?

Right.

Why wouldn't we let Ohioans choose what they want their Constitution to say in terms of a possible overturn Roe versus Wade, which has been, you know, the law of the land?

Right.

Those Supreme Court justices even said it's the law of the land.

And here we are now with this leaked decision that could be on the horizon, abortion and birth control are for some people to entirely different topics.

And you have a lot of support for the use of birth control.

And certainly some polls have shown support for most people to support some sort of access to abortion.

But birth control is a much wider opinion, I think, when it comes to access.

Why not split this and try to get access to birth control guaranteed before or instead of seeking access to abortion, which the legislature's already indicated that it's not going to go for?

Yeah, I think it's important for us to do this all together.

I think every dangerous anti-abortion bill that has been introduced here in Ohio, Democrats have fought back.

Right.

What better way to fight back on a possible overturn of Roe versus Wade other than to codify and protect all of our reproductive rights?

Right.

So if someone is going to say they support contraceptives over and under the table, but they don't support abortion, then that's kind of an oxymoronic view, right?

You can't tell women that you are going to force them to carry that child to term and give birth to that child with no exceptions for their own mental health or even their health period if that pregnancy puts their lives at risk.

Why are we saying that?

You know, the woman's life is not just as important right.

And I think this is not necessarily two separate issues.

It's the same issue in and of itself, which is why we are doing this together, because you cannot take away contraceptive protections for women while telling them that they are now forced to carry these pregnancies to term.

It's you know, it goes hand in hand.

Those two things work together.

And if we want to do this the safe way, we have to let these decisions be made in private with the woman or the pregnant person.

And their medical professional.

And you have said a couple of times, this is personal to you.

This is personal to you.

Mm hmm.

It is.

It's very personal to me.

And it actually struck me when you mentioned the loving case and, you know, the Obergefell case as well, because not only am I a survivor of sexual assault myself, and child sexual abuse, which goes right into my strong views and beliefs that, again, side with the majority of Ohioans when it comes to women's reproductive health care.

But, you know, I am a product of an interracial marriage as well.

So that goes right into personally affecting my family and my children.

Identify with the LGBT community.

So that goes right into the Obergefell decision as well.

And we have to, you know, stand up against the extremist wing in our government right now.

Whether it's in our state houses or whether it's on the federal level and tell them that our rights and our liberties will not be infringed because of this extreme right wing radicalization of what their party has become.

Someone has to stand up and say, enough is enough.

We deserve rights and our liberties just as much as any one of you do.

And we will no longer put up with all of these red herrings that they're throwing out there to just scare people into believing that they are doing the right thing when in fact, they're not, because they're just stripping your liberties and freedoms away from you.

Also this week, Marks Vindman is a professor at the Moritz College of law at Ohio State University, specializing in inequality in the law and culture.

With recent work focused on LGBTQ rights and reproductive justice.

I spoke with Spindle Men about what he sees in the draft opinion.

I guess I do want to say there are a range of reactions to the leaked opinion.

Some folks are who are committed to pro-life positions are optimistic, very optimistic, but some cautiously optimistic, whereas many folks who are committed to pro-choice positions are deeply, deeply concerned about this draft opinion potentially becoming the position of the court.

Even without thinking about the sort of reverberations of the court's final decision in the case, whatever that looks like, although they're not unmindful of the broader potential sweep of the decision, Justice Alito's opinion, precisely as you're talking about taking what is known as an originalist approach to interpreting the Constitution, has written that Justice Alito's draft is written in a way that calls the abortion right into question.

Precisely because it's not supported directly by the or expressly by the text of the 14th Amendment and is also not, in his view, sufficiently grounded in the nation's history and tradition, notwithstanding either the history or the 50 nearly 50 years of abortion protections since Roe.

But the logics of or the reason of Justice Alito's opinion calls into question the broader constitutional right or the more generalized constitutional right of privacy, out of which the Supreme Court's decision in Roe against Wade through this broader or more generalized right to privacy was famously announced in a case called Griswold against Connecticut, was later reaffirmed and extended before Roe in a case called Eisenstadt against Baird, which paved the way to the decision in Roe insofar as the Alito draft.

Again, if it becomes or turns out to be the court's opinion in the case and continues to be structured the way that the leaked draft is.

If this opinion, with its originalist approach, calls Roe against Wade into question and overturns the right to abortion protected by Roe and Casey and other cases on originalist grounds, it's hard to see how this in principle shouldn't apply to other kinds of rights.

Also grounded in this broader right to privacy which itself is called into question in different ways in the draft.

That said, it's important to recognize that the opinion goes out of its way to say that it is deciding only, only, only the abortion rights question and that its decision does not decide any of the other cases like involving contraception, whether by unmarried or by married couples or other kinds of cases in the same constitutional line of decision.

That this is a point of criticism, though from one perspective, it might simply be the court being cautious and saying, we're only deciding the case in front of us.

But on another level, given some of the statements that were made during oral arguments in this case back last December and other indications, there's reason to think that there may not be a majority of the court, at least at the present time, in support of overturning those other constitutional rights that can trace the roots back to these privacy decisions.

That is to say, it may be a reflection not just of traditional judicial cautiousness about not deciding a case that's not squarely presented and argued to the court, but it may be a reflection of where the justices actually are on those other questions compared to where they are on the abortion question.

Last point on this, if I might that there's a there's a concern from a certain point of view precisely along these grounds that the opinion the draft opinion that was leaked, which again may become the opinion of the court, appears to be taking not a principled or a consistent originalist position on all manner of individual rights under the 14th Amendment, but is taking one approach where abortion rights are concerned and perhaps signaling that there will be another approach where some of these other rights are involved.

How the court actually winds up sort of managing that?

I think we're going to have to wait, of course, and see.

But there's clear language just one more time.

In the opinion that says the decision is only about abortion and not these other rights, even though the reasoning that the court offers for striking down Roe and the abortion rights apply equally to those other questions.

Yeah, and you referenced this.

Alito wrote.

Nothing in this opinion should be understood the cast doubt on precedents that do not concern abortion, because there are a lot of people like you're referencing who just aren't believing that they're concerned about same sex marriage, birth control, interracial marriage, the right to data privacy, privacy and health records.

But what we don't know because we don't know yet.

Well, I mean, again, the ways of the court here's and decides cases and lays down principles of constitutional law would ordinarily suggest that if what the court is telling us is that it is going to be deciding constitutional questions, both as an original matter and then later in part with reference to whether the court will respect precedents that it thinks were perhaps decided incorrectly as an initial matter.

If originalism this method that the court in this draft opinion is embracing, if originalism is the method of constitutional interpretation, then it may be challenging to see how one differentiates between abortion rights and the other kinds of rights that you mentioned.

Spindle then also suggests the final decision in Dobbs won't be among the first released when the court's term ends, because, he says, blockbuster decisions are often held til the end.

And one other quick note.

Ohio's public school system has a new chief.

Former Rentals Burge City Schools Superintendent Steve Dakin, who had been vice president of the state school board until he resigned in February.

Was selected as the state school superintendent before DAC and left the board and applied for the job.

He had been in charge of the search for a replacement for Paul de Maria who resigned as superintendent last year.

And that's it for this week for my colleagues at the Statehouse News Bureau of Ohio Public Radio and Television.

Thanks for watching.

Please follow us in the show.

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Please check out our website at State News dot org.

And please join us again next time for the state of Ohio.

We end the show this week with images of flags at half staff as ordered by President Biden and Governor Mike DeWine in remembrance of a million Americans killed by COVID, including more than 38,400 Ohio Support for the statewide broadcast of the state of Ohio comes from medical mutuel, providing more than 1.4 million Ohioans peace of mind with a selection of health insurance plans online at met mutual dot com slash Ohio by the law offices of Porter Wright Morris and Arthur LLP.

Now with eight locations across the country, Porter Wright is a legal partner with a new perspective to the business community.

More at Porter right dot com and from the Ohio Education Association representing 124,000 members who work to inspire their students to think creatively and experience the joy of learning online at OHEA.org