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Ohio GOP Senate candidate says ballot measure would let a rapist 'force' a woman to get an abortion

Businessman Bernie Moreno and other Republican politicians in Ohio have tried to turn public support away from the Issue 1 ballot measure facing voters Tuesday.
GOP Senate candidate Bernie Moreno in Delaware, Ohio on April 23, 2022.
GOP Senate candidate Bernie Moreno at a rally in Delaware, Ohio, in April 2022. Joe Maiorana / AP file

Ohio Republican Senate candidate Bernie Moreno falsely claimed in a recent interview that Issue 1 — the ballot measure seeking to enshrine abortion rights in the state constitution — would allow a rapist to “force” a woman to have an abortion.

The remark by Moreno, a businessman, is the latest from groups and individuals opposed to Issue 1 to mischaracterize the proposal by tying it to parental rights.

“As a dad of two girls, it’s about having that girl be able to be raped and having a rapist force her to have an abortion — all without your consent — as a minor,” Moreno said in an Oct. 12 episode of the RestoreLiberty.US podcast.

“That is insane. It is not representative of Ohio values. We absolutely have to make it clear that this ballot initiative has to be defeated. We have to vote no in November,” Moreno added.

Earlier in the podcast, Moreno mischaracterized Issue 1 as being about "on-demand abortion, late-term abortion, stripping parental rights.” If passed, he said, it will have “opened a door to transgender surgeries, transgender mutilation of children.”

Nonpartisan legal experts say his remarks are rife with inaccuracies and falsehoods.

For one, they say, there is nothing in the text or in the intent of the proposed amendment that could affect the legal rights of minors or parents in Ohio. That’s because federal and state courts, going back decades, have upheld an existing Ohio law requiring parental consent for minors seeking abortion care.

A U.S. Supreme Court decision even upheld that law, which requires any unemancipated minor to receive consent from one parent or guardian or custodian, unless a judge has ruled that an abortion is “in the best interests of the minor.”

Tracy Thomas, director of the Center for Constitutional Law at the University of Akron Law School in Ohio, said there was "no conflict" between Issue 1 and existing minors' rights — "even when the amendment language is read broadly."

"We have 50 years of case law about minors' rights and parents’ rights," Thomas said.

Those rulings, she said, have determined that “even though individuals, including minors” have constitutional reproductive rights, “they can be more regulated than adults because minors are more vulnerable, more immature.” 

“There’s no reason that would change,” she said.

In a legal analysis of the measure published last month, even Dave Yost, a Republican and the state’s attorney general, acknowledged that the measure “does not specifically address parental consent.”

Thomas explained that the claim that a woman's rapist could somehow manipulate that law to force his victim to have an abortion is also false.

"They are saying that a rapist would be an accomplice who would be immune" — under a provision in the amendment language that protects a person who "assists" someone with receiving an abortion — "and that’s just not textually accurate."

“The amendment is not doing that in any way, shape or form," Thomas said.

That's because the amendment language also makes clear that an individual's right to reproductive care is protected only if it's "voluntary."

"Someone who is assisting in an abortion that’s not voluntary is not going to be protected by this at all," Thomas explained.

For months, groups and individuals opposed to Issue 1 have argued that the proposed amendment is intentionally worded to be interpreted to allow minors to obtain abortion care and undergo gender-affirming surgery without parental consent or notification.

But, as NBC News reported in July, nonpartisan experts say those claims, too, are inaccurate and misleading. Reproductive rights advocates argue that they are misdirection designed to distract voters from protecting abortion rights — which polling in Ohio shows voters support.

A Moreno campaign spokesperson said the candidate’s comments were intended to serve as a “defense of parental consent” and criticized those who have shot down the claim that Issue 1 would curtail parental rights.

Moreno campaign spokesperson Conor McGuinness said in a statement that Moreno was "proud to stand up in defense of parental consent," and "Issue 1 clearly states that a third party who ‘assists’ a minor in getting an abortion will be protected."

McGuinness said that Moreno’s remark referred to a 2004 episode in Ohio in which a 14-year-old girl who had been raped by her 21-year-old soccer coach obtained abortion care after she wrote down on the parental consent form the coach’s phone number and said it was her father’s.

Issue 1 asks voters whether language should be inserted in the state constitution codifying for every person in Ohio the right “to one’s own reproductive medical treatment, including but not limited to abortion” and barring the state from “burdening, penalizing or prohibiting” those rights. The measure would also “create legal protections for any person or entity that assists a person with receiving reproductive medical treatment, including but not limited to abortion.”

Issue 1 specifies that abortion would remain prohibited after fetal viability but includes exceptions to protect the mother’s life or health. That means that if passed, abortion would still be illegal in Ohio after about the 24th week of pregnancy except when the treating physician determines that a mother’s life or health is at risk.

If passed, the amendment would also protect abortion access for survivors of rape and incest through about the 24th week of pregnancy — something that current state law in Ohio does not do.

Issue 1 supporters argue that rejecting it would most likely have a harmful impact on rape victims seeking abortion care. For example, when Ohio’s current six-week abortion ban was in effect (it is now temporarily blocked by a state judge), a 10-year-old rape victim near Columbus was forced to travel to neighboring Indiana for abortion care because she was legally prohibited from receiving such care under the law.

“A parent who wants to support a minor’s decision to have an abortion cannot do so,” under the law, Thomas explained. “So, defeating it actually cuts into parents’ rights.”

If the Ohio Supreme Court allows the six-week ban to stand, “the only way to protect the rights of sexual assault survivors is to pass Issue 1,” added Gabriel Mann, a spokesperson for Ohioans United for Reproductive Rights, the largest group working to pass the measure. “If this amendment fails, every victim will be forced to flee Ohio to access care.”

Critics maintain that the “not limited to” wording, as well as the fact that the proposed amendment includes gender-neutral language — it says “individual” instead of “woman” — opens avenues for abortion-rights advocates to broaden the measure to provide protections for a wider host of issues related to reproductive and gender-affirming care. Critics also point out that the amendment does not explicitly include age restrictions.

But there is no mention of transgender rights or parental rights in the amendment. Legal experts say it would be wrong to interpret the language to apply to most topics not specifically mentioned in the measure’s language — even when the “not limited to” phrase is considered.

“Opponents have latched on to the ‘but not limited to’ language to say that this could provide a constitutional right to, among other things, gender-affirming care rights. That’s not a legally persuasive argument,” Jonathan Entin, a constitutional law expert and professor emeritus at the Case Western Reserve School of Law in Cleveland, told NBC News earlier this year.

That’s because courts have for decades developed rules about interpreting legal documents that include lists — including ones that have “but not limited to” language — dictating that such language covers things considered only “plausibly related” to the specific items mentioned.

Issue 1 opponents claim that the language in Issue 1 is broad enough that, if the measure were to pass, courts would then have sufficient legal flexibility to circumvent that requirement.

Moreno isn’t the first Ohio Republican or Issue 1 opponent to make such claims. In a recent ad run by Protect Women Ohio, the largest group against the measure, Gov. Mike DeWine appears alongside his wife, Fran, who says that the measure “would deny parents the right to be involved when their daughter is making the most important decision of her life.”

Protect Women Ohio has run numerous other ads that argue that the proposed amendment would allow minors to undergo “sex change surgery” or obtain abortion care without their “parents’ knowledge or involvement.” 

The other two Republicans running against Moreno in the Senate primary to take on the incumbent Democrat, Sherrod Brown, have also made their opposition clear. Secretary of State Frank LaRose said this year that an August special election was "100% about keeping a radical pro-abortion amendment out of our constitution," while state Sen. Matt Dolan has slammed Issue 1 as “extreme.”

Mann, of Ohioans United for Reproductive Rights, said that “voting Yes on Issue 1 strengthens parents’ rights and protects families.”

“Politicians don’t want to acknowledge that Issue 1 is simply about stopping the extreme abortion ban that has no exceptions for rape, incest or when the woman’s life or health could be at risk,” he said.

In a statement, Brown campaign manager Rachel Petri said, “All of Sherrod’s opponents want to make Ohio women’s personal health care decisions for them, and Bernie Moreno has made it clear he opposes all abortion exceptions, even in cases of rape.”

Moreno has said he supports a federal 15-week abortion ban that would also let states issue additional restrictions, but would include exceptions for rape, incest and saving the life of the mother.

Passage of Issue 1 would effectively counteract Ohio’s “heartbeat bill,” which snapped into place immediately after the Supreme Court’s Dobbs decision in June 2022 ended the constitutional right to abortion. That state law bans most abortions — with exceptions for the health of the pregnant woman and in cases of ectopic pregnancies but not for victims of rape and incest. The law remains temporarily blocked by a state judge, and the case is now before the state Supreme Court, which heard oral arguments in September.

Issue 1, if it passes, would nullify a prospective ruling allowing the heartbeat law to stand. If Issue 1 loses and the court lets the law stand, most abortions would be illegal in Ohio around six weeks of pregnancy.