Ohio abortion rights groups add challenges to other laws to their 2021 telehealth lawsuit

BY: SUSAN TEBBEN – Ohio Capital Journal

A long-standing lawsuit challenging Ohio law with regard to telehealth abortions might now challenge other abortion-related laws in the state, according to a new filing.

The ACLU, the Planned Parenthood Federation of America and two other law firms filed an amendment to their original lawsuit, asking a Hamilton County Court of Common Pleas judge to add new complaints against state laws that keep certain medical professionals from prescribing a drug called mifepristone, commonly used in combination with misoprostol for medication abortions.

A separate law being challenged prohibits physician assistants, nurse practitioners and certified nurse midwives from providing medication abortions, according to a press release by the ACLU announcing the new challenges.

The amended complaint is an update to a lawsuit that has been active since 2021 in Hamilton County. The suit started out as a case against a law banning telehealth abortion services, that is, medication abortion appointments conducted virtually.

Senate Bill 260

Back in April 2021, Planned Parenthood groups sued to stop Senate Bill 260, which had been passed months prior to ban the telehealth option for medication abortions, requiring in-person visits with a physician to receive medication abortion treatment and making it a fourth-degree felony for a physician to violate the law.

Hamilton County Common Pleas Judge Alison Hatheway has twice granted a preliminary injunction in the case, which keeps SB 260 from being enforced. The most recent preliminary injunction was put in place “until final judgment is entered in this case,” according to Hatheway’s order.

The U.S. Food and Drug Administration lifted in-person dispensing requirements for mifepristone that same year.

When the health clinics first sued the state over the law, they argued the law “irrationally prohibits abortion providers from using telemedicine to provide medication abortion to Ohioans.”

The clinics also said the law violates the state constitution’s due process, equal protection and “free choice in health care” guarantees.

An attorney for the Ohio Attorney General’s Office argued at the time that there was “no fundamental right at issue” in the case, and that the law impacted “a very narrow subset” of patients seeking abortions.

As of November of last year, there’s a new amendment in the Ohio Constitution, one that protects the right to reproductive health, including abortion and miscarriage care. The mifepristone-misoprostol treatment can also be used in miscarriages, which are referred to in medical terms as “spontaneous abortions.”

Attorneys hope to use the newest constitutional amendment as an argument against not only the telehealth law, but the other laws they’ve added in as well.

“The Amendment therefore creates a new cause of action that applies directly to the challenged law … further rendering it unconstitutional,” attorneys wrote in the most recent court filing.

They call the amendment’s passage “a major legal development” that “establishes a clear and unequivocal right to abortion” while also barring the state from interfering in abortion care.

“Individually and collectively, the challenged laws ‘burden, penalize … interfere with, (and) discriminate against’ both Ohioans who seek to exercise their fundamental right to abortion and plaintiffs who assist Ohioans in exercising that right by providing abortion care, by delaying, impeding and restricting access to medication abortion,” court documents stated.

Other law(suits)

Ohio law already requires a minimum of two visits to a provider before an abortion can take place, identification of fetal cardiac activity before the procedure and a 24-hour waiting period before the procedure is conducted. All of these laws are now being challenged in one court case or another.

In Franklin County, a lawsuit asks the court to eliminate the 24-hour waiting period before an abortion can take place and the requirements that doctors provide certain information and a fetal heartbeat exam before they can provide an abortion.

A separate lawsuit is still chugging along in Hamilton County as well, seeking to kill the six-week abortion ban enacted in 2019. The law was almost immediately challenged, but the state was able to bring the ban back after the Dobbs decision by the U.S. Supreme Court that overturned the national abortion legalization in Roe. v. Wade.

After the Ohio Supreme Court didn’t act on a lawsuit submitted to them, clinics moved the lawsuit to Hamilton County, where they successfully got the ban paused as the lawsuit continues.

The state tried to appeal the pause to the state’s highest court, but the court cited “a change in law” when it rejected the appeal.

Ohio Attorney General Dave Yost has pushed back against the Franklin County lawsuit, along with certain aspects of the six-week abortion ban suit.

In both cases, he acknowledged the constitutional amendment “invalidated” the six-week ban, but he pushed back on arguments that the amendment covers abortion issues as broadly as abortion rights advocates think it does.

In a filing related to the six-week abortion ban case, Yost said the amendment does not bar “all laws that touch on abortion – and even some laws that have nothing to do with abortion or anything else the amendment mentions.”

Telehealth abortions went up following the U.S. Supreme Court decision in Dobbs. A national study from the Society of Family Planning showed 16% of abortions were conducted via telehealth as of September 2023, up from 4% pre-Dobbs.