Hamilton County judge blocks Ohio law regulating abortion remains

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By: Susan Tebben – Ohio Capital Journal

A Hamilton County judge blocked a 2020 Ohio law on Thursday that required the burial of fetal or embryonic remains after an abortion.

Hamilton County Judge Alison Hatheway ruled in favor of abortion clinics in the lawsuit, filed in 2021, saying Senate Bill 27 has “unconstitutional provisions” that “cannot be severed,” therefore the only solution is to permanently block the law from going into effect.

“If S.B. 27 were allowed to go into effect, it would severely impede access to abortion resulting in delayed or denied health care,” Hatheway wrote in her decision.

The state had not offered any points to support the argument that S.B. 27 is the “least restrictive means to advance the individual’s health in accordance with widely accepted and evidence-based standards of care,” she ruled.

“As the (clinics) argue, it is clear why the state has been silent on this issue,” Hatheway wrote. “S.B. 27 simply does nothing to serve patient health.”

The lawsuit was filed by Planned Parenthood in Ohio and other state clinics, who emphasized that they follow regulations to dispose of surgical abortion tissue just as any other medical facilities do for disposal of medical waste.

The ODH was required under the law to create a “notification form” for the pregnant person informing them of “the right to determine the final disposition of fetal remains and the available methods and locations,” along with a parental consent form for minors and reporting documents on disposal.

Clinics told the court the law would create “an impossible situation” because it was set to go into effect before rules from the Ohio Department of Health were established.

S.B. 27 included misdemeanor criminal charges for clinics who didn’t follow ODH rules and regulations on burial and cremation of surgical abortion tissue, which is anything created “as a product of human conception,” according to the bill.

The Senate bill says nothing about regulation for the same tissue produced from miscarriage or IVF embryos, something the judge noted in her ruling.

“S.B. 27 serves only to target and discriminate against individuals seeking procedural abortions and their health care providers,” she wrote.

Hatheway had temporarily blocked the law multiple times, including in Feb. 2022, when she said the clinics were “substantially likely to succeed” in the lawsuit due to the Ohio Constitution’s confirmation that “freedom of choice in health care is a fundamental right.”

That ruling was released even before a constitutional amendment was added in Nov. 2023, to add reproductive rights including abortion to the state’s founding document.

In April, after the constitutional amendment was approved by 57% of Ohio voters, an amended complaint was filed with an argument using the new amendment.

“This law clearly violates the Ohio Constitution, as its sole purpose was to impose severe burdens on abortion patients and providers, and to shame patients in seeking care,” Jessie Hill, cooperating attorney for the ACLU of Ohio, said in a statement after the ruling was announced.

The state could be appeal the decision to a higher court, but it’s unclear whether that will be pursued by the state. The anti-abortion lobby Ohio Right to Life, however, said they are anticipating a challenge.

“We fully expect our pro-life Attorney General Dave Yost to appeal this inappropriate decision,” said Ohio Right to Life President Mike Gonidakis in a statement. “The American people are exhausted by what is happening at the federal judiciary and now within our state courts. The role of the courts is to interpret the law and not to make law.”

A spokesperson for Yost said the AG’s office is “reviewing the decision and will consider all options regarding next steps.”

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Susan Tebben

Hamilton County judge  is an award-winning journalist with a decade of experience covering Ohio news, including courts and crime, Appalachian social issues, government, education, diversity and culture. She has worked for The Newark Advocate, The Glasgow (KY) Daily Times, The Athens Messenger, and WOUB Public Media. She has also had work featured on National Public Radio.

Ohio Capital Journal is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.

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