Ohio abortion law court cases moving slowly forward after amendment

2024 Election has candidates taking stances on amendment passed by voters, Ohio law, and potential national ban

BY: SUSAN TEBBEN – Ohio Capital Journal

The road toward the November general election will include many more debates about abortion and reproductive rights in Ohio.

The conversation is taking shape in the form of campaigning candidates and their stances on upholding the constitutional amendment approved by 57% of voters last November, and the potential for a national abortion ban floated by Republicans on the federal level.

Several lawsuits and legislative measures are working their way through the Ohio Statehouse and the court system.

Most recently, Ohio Attorney General Dave Yost filed his opposition to a request in a Franklin County court by abortion providers that would pause a 24-hour waiting period required in state law before an abortion can be conducted, among other laws the suit challenges.

In the court documents, Yost acknowledged the new amendment to the Ohio Constitution that legalized abortion services and other reproductive treatments, and maintained a previous concession that the amendment “invalidated Ohio’s 2019 law prohibiting most abortions, absent certain exceptions, after a fetal heartbeat was detected – around six weeks after conception.”

That law is still the subject of its own lawsuit in Hamilton County, where clinics have asked for the six-week abortion ban to be eliminated, and for which the Ohio Supreme Court said it would not intervene in an enforcement pause  “due to a change in law.”

But the attorney general would not bend to the idea he said was being argued by providers: that the amendment “bars all laws that touch on abortion – and even some laws that have nothing to do with abortion or anything else the amendment mentions.”

“Just as it is the state government’s duty to respect the will of the people by conceding the invalidity of a statutory provision that conflicts with the current language of the Ohio Constitution, it is also the state governor’s duty to respect the will of the people by defending statutory provisions that the amendment does not invalidate against meritless attack,” Yost’s office said in the court filing last week.

Yost also argues the abortion clinics “lack standing to challenge” laws like the waiting period provision, the requirement that patients attend in-person appointments to hear possible risks and other information about abortion, and a requirement that an ultrasound be conducted to identify a heartbeat.

Yost’s argument explains that though the amendment keeps the state from burdening, penalizing, prohibiting, interfering with or discriminating against anyone seeking an abortion or assisting with an abortion, “only the physician plaintiff must comply with the challenged statutes, and only she can be penalized for the violations of those laws.” Thus, the clinics as a whole can’t claim a violation of rights, only the physicians themselves.

“No party in this case has asserted a claim based on the individual right to obtain an abortion created by the amendment,” Yost’s office wrote.

Because the amendment was enacted to restore the rights from the national abortion legalization in Roe v. Wade, which was overturned in the U.S. Supreme Court’s Dobbs decision of June 2022, and not the laws of the state related to abortion, “these laws remain valid under the amendment,” the attorney general claims.

Responding to claims by clinics, which argued the 24-hour waiting period creates a situation in which “in practice, patients are often forced to wait much longer” based on physician availability, procedural requirements like fasting for sedation and anesthesia, and even things like transportation barriers for the patients, Yost said delays were not a legal issue.

“But the fact that patients often wait longer than 24 hours is not because of the law, but rather is attributable to several factors outside of the state’s control,” Yost’s filing stated.

The opposition filing further argues the requirement to check for a fetal heartbeat before an abortion “in no way acts to prevent any abortion, and indeed, plaintiffs have long admitted that they easily complied with that law for years.”

Blocking enforcement of the laws at issue in the lawsuit “would irreparably harm the public,” Yost concluded. The public interest would be at stake in the lawsuit as well, “because the General Assembly is democratically elected to represent the public interest of the state as a whole.”

Abortion and the 2024 general election

The General Assembly election and the race for the U.S. Senate seat that Sen. Sherrod Brown currently holds could become a referendum on how Ohioans feel about abortion and the candidates’ stances on it.

One legislator running for reelection in the 45th Ohio House district, the staunchly anti-abortion GOP state Rep. Jennifer Gross, has said she “will not swear allegiance” to the reproductive rights amendment included in the Ohio Constitution if she’s reelected. She also made comments to the public that she believes Issue 1 is unconstitutional, and helped author a bill in the legislature to take enforcement of Issue 1 away from the judicial branch and lay the authority upon the legislature itself. House Speaker Jason Stephens has dismissed concerns about the bill, or even the likelihood that the bill will be taken up.

Also up for reelection is state Sen. Sandra O’Brien, R-Ashtabula, in the 32nd state Senate district. She introduced a bill that would allow tax credits for those who donate to “pregnancy resource centers,” highly criticized centers who are often affiliated with anti-abortion entities, and does not allow for a tax credit for a donation going to any center that performs or is affiliated with abortion services.

The bill was brought to committee just weeks after the abortion amendment passed, and currently sits in the Senate Finance Committee.

Most recently, the incumbent up for reelection in the 41st House district, state Rep. Josh Williams, R-Sylvania, introduced a bill that would keep state funds from going to “any entity that supports, promotes or provides abortions,” even threatening to withhold local government funds from municipalities found to reimburse for abortion services. It’s been assigned to the Ohio House Government Oversight Committee, but has yet to receive a hearing.

Days after the constitutional amendment passed last year, the Ohio Democratic Party was already working to connect the anti-abortion rights views that failed to convince a majority of voters in Ohio on Issue 1 to the opinions of Brown’s November opponent, Bernie Moreno, and the other candidates in the March primary.

Fundraising emails and press releases sent out in the months that followed continued to spotlight Moreno’s anti-abortion views and comments about a national 15-week abortion ban that has been floated by Republicans.

Even in Ohio after the abortion amendment passed, Senate President Matt Huffman pondered the idea of a 15-week ban as a potential idea in the future.

Dr. Courtney Kerestes, an OB/GYN practicing in Columbus and a member of Physicians for Reproductive Health said there is “no medical significance” to the 15th week as a landmark to ban abortion, but sees the marker as merely a talking point to bolster supporters against abortion rights. The Mississippi case that would become the Dobbs case through which the U.S. Supreme Court overturned Roe v. Wade involved a 15-week ban.

According to the most recent induced abortion report released by the Ohio Department of Health, only 10.4% of all abortions happened between 13 and 22 weeks gestation, with a vast majority (67.4%) happening at less than nine weeks.

But the talk of an abortion ban at any gestational age causes confusion for patients in Ohio, who also know the amendment exists with a provision stating the decision about pregnancy and abortion is left up to the patient and their treating physician based around fetal viability.

Kerestes said patients who had “strongly desired pregnancies” came to her afraid that a fetal anomaly could arise in their pregnancy, and that the decision as to whether or not they were allowed a say in the fate of the pregnancy may not be up to them. The same would not be said of someone getting a colonoscopy, or those in need of cardiac care, she said.

“It’s important to think of all of these unfortunate complications that can come with pregnancy,” Kerestes said. “I don’t want to be sitting there wondering if I need to refer to a lawyer before I provide care.”

Moreno did not respond to requests for comment from the Capital Journal, but has previously said he would support a national 15-week abortion ban and has called himself “100% pro-life, no exceptions.”

On Twitter, he called Roe v. Wade “a terrible decision made over 50 years ago that led to the ending of millions of unborn lives.”

A statement from Brown’s campaign said the incumbent U.S. senator “stands with the overwhelming majority of Ohioans who voted to protect abortion rights in Ohio’s constitution last year.”