This procedure is banned in the US. Why is it a hot topic in fight over Ohio’s abortion amendment?

People gather and pray during the Ohio March for Life on Oct. 6 at the Ohio State House in Columbus, Ohio. (AP Photo/Carolyn Kaster)

COLUMBUS, Ohio — With Election Day closing in, 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 but that hasn’t been legal in the U.S. for over 15 years.

In ads, debates and public statements, the opposition campaign and top Republicans have increasingly been referencing “partial-birth abortions” as an imminent threat if voters approve the constitutional amendment on Nov. 7. “Partial-birth abortion” is a non-medical term for a procedure known as dilation and extraction, or D&X, which is already federally prohibited.


“It would allow a partial-birth abortion,” Ohio Gov. Mike DeWine told reporters recently as he explained his opposition to the constitutional amendment, known as Issue 1.

“For many years, in Ohio and in this country, we’ve had a law that said a partial-birth abortion — where the child is partially delivered and then killed and then finally delivered — was illegal in Ohio,” the governor continued. “This constitutional amendment would override that.”

Constitutional scholars say that is not true and that the amendment would not override the existing federal ban if Ohio voters approve it.

“So changing our constitution will not affect in the slightest way the applicability of the federal partial-birth abortion ban,” said Dan Kobil, a law professor at Capital University in Columbus, who supports abortion rights. “It 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 Reserve University.

“If the federal law prohibits a particular technique, then that’s going to prevail over a state law that might be inconsistent,” he said.

Ohio is the only state this November where voters will decide whether abortion should be legal. But the debate isn’t happening in isolation. The state has been used as a campaign testing ground by anti-abortion groups after a string of defeats since the U.S. Supreme Court overturned a constitutional right to the procedure. And next year, abortion rights supporters are planning to put the question before voters in several more states, ensuring the issue will be central to races up and down the ballot.

A D&X procedure involved dilating the woman’s 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 Partial-Birth Abortion Ban Act was passed in 2003. He voted for the prohibition, which declared a “moral, medical, and ethical consensus” that the procedure was “gruesome and inhumane.” President George W. Bush signed the measure into law with DeWine at his side.

The ban was largely on hold while a constitutional challenge played out. The U.S. Supreme Court in 2007 rejected arguments against the law, upholding its application across all 50 states.

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