Warning: Your Head Is About to Spin

Lesson: Passing Reproductive Freedom Amendments Is Only Step One

Either Ohio Attorney General David Yost has a short memory, or he assumes we do.

Because his stunning legal about-face on the meaning of Ohio’s new Constitutional Amendment—the one protecting reproductive freedom for Ohioans—will leave your head spinning.

And what he’s attempting to do provides an important lesson for those fighting for reproductive freedom across the nation.

Here’s the outrageous sequence…

An “Impartial” Interpretation

Late in last year’s high stakes campaign to enshrine reproductive freedom into Ohio’s Constitution, Ohio’s Attorney General—David Yost—entered the fray and grabbed a big microphone.

Yost fretted that there was “public misunderstanding” and “confusion” about the impact Issue 1 would have. (He leaves a strong impression that the campaigns are lying about their claims).

Yost the campaign truth-teller

So in early October, he released a “legal analysis” to explain the impact of the new right created by the Amendment’s language.

When he volunteered his Issue 1 analysis, Yost insisted that even though he personally opposed Issue 1, this was his public office’s official analysis, and had nothing to do with his personal view. He went all-in to convince Ohio that this was an unbiased legal presentation, using words such as “impartial resource” and "objective analysis” to describe his legal summary. This was about “vital clarity and transparency.”

As he wrote at the time: “I owe it to [the people] to give them accurate information so they can make informed decisions. This work is for them.” It was his “duty,” as Ohio’s chief law officer, to present a “straightforward, balls-and-strikes assessment…from a legal standpoint….These are not policy analyses — not ‘why,’ but ‘what.’”

What a saint.

In that spirit, Yost emphasized that the work came from a “team” of “attorneys and professional staff.” But he also made clear that he had personally reviewed the “painstaking work, discussed the documents at length, and made changes where appropriate to convey their work in a way that is clear, honest and digestible.”

So you, the taxpayer, paid for this assessment, and Yost himself signed off on the conclusions reached.

It was an “honest” analysis, he told us.

“Impartial,” he insisted.

Interpretation #1: “not just ‘restoring Roe’….[Going] further.”

So what did he and his legal team conclude?

Their assessment was clear: If passed, the Issue 1 language would “create a new standard that goes further than Casey’s ‘undue burden’ test or Roe’s strict scrutiny’ test and will make it harder for Ohio to maintain the kinds of laws already upheld as valid prior to…Dobbs. In other words, the Amendment would give greater protection to abortion to be free from regulation than at any time in OH history.” (italics, here and below, are my emphasis).

Then he wrote these important words: “This change is significant: the Amendment would not return things to how they were before Dobbs overruled Roe, and is not just ‘restoring a roe.’ It goes further.”

“All told, the Amendment’s new standard goes beyond pre-Dobbs law under Roe v. Casey. That means that many Ohio laws would probably be invalidated—even those that were allowed under Roe and/or Casey.”

And these challenges could be made based on “our reading of the language.” (again, italics are mine). To be clear, that’s the Attorney General’s reading. His staff. The interpretation he personally reviewed and signed off on.

One law he lists as being in jeopardy is the 24-hour waiting period.

He speculates about the type of argument that could be made using the proposed Constitutional language, and suggests if a court were to agree, a 24-hour waiting period would not likely “survive.”

OK.

So that was AG Yost laying out his and his office’s interpretation of the Issue 1 language. He told the entire state this was what the new language would do. This was his “honest” and “impartial” legal analysis.

Importantly, his goal in getting this out there was to be sure Ohio voters understood that this was the implication of the legal language before they cast their votes.

And guess what?

With Yost’s clear-cut analysis out there, Issue 1 passed.

By a landslide!

And now some of the very challenges he predicted are coming in court….

Interpretation #2: Changes? What Changes?

And boy, you’d hardly recognize the guy.

Or the interpretation his crack team that YOU still pay for is now offering up.

Specifically, there is a current challenge to the 24-hour waiting period in a Franklin County court.

And what did his team argue in court?

(Caution: whiplash forthcoming)

THIS: “The amendment was meant to restore the pre-Dobbs legal regime − a regime that allowed and upheld Ohio’s waiting period, in person, and informed consent provisions.”

But…but…but…that directly conflicts with the “honest” “balls and strikes” assessment Yost personally provided months ago.

Remember? He and his team told all of Ohio that the Amendment went “beyond pre-Dobbs law under Roe and Casey.” That it created a “new, legal standard.” That the new right would not simply “return things to how they were before Dobbs overruled Roe, and is not just ‘restoring Roe.’ It goes further.”

Incredibly—in the current court case, they even use the exact same word, “restore,” from their October analysis. But they’ve removed one crucial modifier that appeared right before it in October—the word “not.” Which means they're asserting the exact opposite interpretation than they did before the voters approved it.

Question: Which is the Lie?

So the question we are left with is: which argument do Yost and his team believe? And which was/is the lie?

If what they’re arguing NOW is true, then did Yost release a long, OFFICIAL legal analysis to the voters of Ohio that was a lie—designed to mislead them into voting No?

Because to do that from the official side, using taxpayer dollars and public staff to influence a high-stakes campaign defining Ohioans’ essential rights, would seem…

…highly problematic.

Especially when he swore up and down that his was the “honest” assessment Ohioans were owed before voting.

Or…

Is Team Yost going into court NOW, making arguments that directly defy their actual, “honest” assessment of OH’s new Constitution—and Yost’s own personal review of the issue?

Because that’s not a good thing for a lawyer or AG’s office to do either.

The Lesson: the Battle Has Just Begun

Whatever the answer, the lesson from this over-the-top about face is that the right-wing politicians in this state (and others) are going to do all they can to twist the words of new Amendments protecting reproductive freedom to mean whatever suits them and their agenda best—voters and the law be damned.

If the Attorney General of Ohio is this aggressive and blatant in doing so, you bet others will do the same.

Which is an important reminder that this fight has just begun.

Officeholders at every level in state and federal government will ultimately shape the new freedoms being fought for and secured through successful amendments. For example, the majority of the Ohio Supreme Court is in the balance this year (we can flip it from red to blue).

In fact, you can support the three Democratic candidates right NOW:

• to support Justice Melody Stewart, give HERE

• to support Justice Mike Donnelly, give HERE

• to support Judge Lisa Forbes, give HERE

Countless state legislative seats are also there to be flipped.

Overall, support and vote for those who you can trust to faithfully interpret and protect the new right enshrined in Ohio’s Constitution, put into place by a robust majority of Ohio voters.

And do all you can to keep those who engage in self-serving legal double-speak as far from these decisions as possible.

Quick Clip: Talking Voter Suppression With Thomas Hartmann

While we’re talking about Ohio’s AG, here is a recent Podcast I did with Thom Hartmann about the letter Yost sent out last month that so reminded me of Jim Crow-era intimidation of voter registration efforts.

Take a look: