Abortion and Trans Rights Advocates Turn to Unlikely Tool in State Constitutions 

Ohio abortion providers filed a claim last week arguing that the state’s ban on prescribing abortion-inducing drugs via telehealth violates the state’s new constitutional amendment protecting abortion rights.

The move is the latest in long-running legal battles over access to health care in the state — both for people seeking abortions and for trans youth who need gender-affirming care. The fight for access to health care came to a crescendo last fall, when voters approved an amendment enshrining abortion rights in the state constitution.

But abortion and trans rights advocates in Ohio and several other states have another surprising tool in their arsenal: a state constitutional amendment pushed by conservatives to limit the reach of the federal Affordable Care Act, colloquially known as Obamacare. 

The Affordable Care Act was enacted in 2010 to expand Medicaid coverage and access to health insurance using tax incentives — tax credits to help lower income people afford health insurance and tax penalties for people who chose to remain uninsured. In the aftermath of its passage, Republicans across the country worked to enact state constitutional provisions barring penalties related to the purchase of health care or health insurance, dubbed “health care freedom” amendments. (Congress has since eliminated the Affordable Care Act’s penalties.)

These constitutional provisions — passed in Ohio, Wyoming, Alabama, Arizona, Florida, and Oklahoma — are broadly written. Wyoming’s anti-Obamacare amendment, for example, states that “each competent adult shall have the right to make his or her own health care decisions.”

Just over a decade later, these provisions hold promise for expanding abortion rights and protecting access to health care for trans people.

A case filed recently in Ohio, for example, challenges a law banning gender-affirming care for trans teens as violating the state’s health care freedom amendment. Ohio’s provision provides that no law or rule can “compel anyone to participate in a health care system,” “prohibit the purchase or sale of health care or health care insurance,” or “impose a fine or penalty for that purchase.” “Health care” is defined as “any care, treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition or physical or mental health.” The plaintiffs — families of trans youth — argue that gender-affirming care like puberty-delaying medication and hormone therapy is health care under the amendment. By forbidding physicians from prescribing these therapies, they say, the law prohibits “the purchase or sale of health care.”

In its motion to dismiss, the state argues that the amendment was enacted only to permit Ohioans to “choose to purchase (or not purchase)” health care — but that the state itself retained the ability to decide “what types of medical care as safe and appropriate for physicians to provide to patients.” The case is set for trial this coming August.

The plaintiffs hope to build on a 2022 trial court decision that cited the health care freedom amendment to block state legislation prohibiting an abortion around six weeks of pregnancy. The health care freedom provision, the court said, “bolsters” and “reinforces” the rights of Ohioans “to make decisions about their own bodies — including the fundamental right to make a decision as private and as central to a person’s bodily integrity as the decision to have an abortion.”

That litigation was mooted by the passage of the abortion amendment the following year. Still, several restrictions on abortion remain in Ohio beyond the telehealth ban: requirements that a patient wait 24 hours and attend an additional in-person appointment before receiving care and that physicians give prospective patients state-mandated information that abortion rights advocates say is irrelevant, distressing, and stigmatizing. In March, abortion providers sued to lift these restrictions, again relying on the health care freedom amendment.

Abortion rights advocates in Wyoming have also challenged that state’s near-total abortion ban under the anti-Obamacare constitutional amendment. A lower court judge recently asked the state supreme court to weigh in on whether the amendment applies to abortion care.

Just as legal theories challenging restrictions on abortion and trans health care are similar, so too are the methods states use to restrict access. Florida recently passed a law requiring adults who receive gender-affirming health care to sign a consent form that includes inaccurate information about the risks of such care. The law mirrors consent requirements from abortion care, like that being challenged in Ohio.

At the time of their passage, proponents of health care freedom amendments explained that they enshrine citizens’ rights to “make some of the most important personal decisions they can make about their choice of health care.” With their application to abortion and gender-affirming care, that assertion rings particularly true.

Julia R. Livingston is an attorney in private practice. Her pro bono practice includes training and volunteering as a case manager for the New York Abortion Access Fund. 

Suggested Citation: Julia R. Livingston, Abortion and Trans Rights Advocates Turn to Unlikely Tool in State Constitutions, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 14, 2024), https://statecourtreport.org/our-work/analysis-opinion/abortion-and-trans-rights-advocates-turn-unlikely-tool-state.