A Hamilton County judge has permanently overturned Ohio’s six-week abortion ban that had been tied up in court since its inception in 2019, but was put into effect for several months after Roe. v. Wade was overturned.
Hamilton County Judge Christian A. Jenkins had already temporarily stopped enforcement of the law when the case entered his courtroom in the fall of 2022 several months after the Dobbs decision overturning national abortion rights established in Roe.
Thursday’s decision means the law is struck down unless the Ohio Attorney General decides to appeal the decision.
In November 2023, Ohio voters passed a reproductive rights amendment with 57% support.
“Ohio’s Attorney General evidently didn’t get the memo,” Jenkins wrote. “For even after a large majority of Ohio’s voters … presumably both women and men — approved an amendment to the Ohio Constitution protecting the right to pre-viability abortion on November 8, 2023, the Attorney General urges this court to leave ‘untouched’ all but one provision of the so-called ‘Heartbeat Act’ clearly rejected by Ohio voters.”
Hours after the Dobbs decision came down in June 2022, Ohio Attorney General Dave Yost asked a federal court reinstate the six-week abortion ban law, which was approved by the court quickly after the request was made. The ban included no exceptions for rape or incest.
Just as quickly, though, the law was then shoved back into court by abortion rights advocates. At first, advocates asked the Ohio Supreme Court to rule on the case, but after a period of inaction by the state’s high court, they chose to challenge the law locally, specifically in Hamilton County.
A separate Hamilton County judge in September eliminated restrictions on telehealth abortion treatment.
With the approval of the reproductive rights amendment in Ohio, attorneys had a new avenue to challenge the six-week ban. They used the language — which allowed abortion to the point of fetal viability, a determination to be made by the pregnant person’s physician, rather than at a point determined by state law — as a tipping point for arguments that the six-week ban was now unconstitutional. Fetal viability typically comes in a range between 24 to 26 weeks.
Yost pushed back, saying the reproductive rights amendment could not be used to negate any law or provision that was remotely related to abortion rights.
However, he also acknowledged it would be quite a battle to argue that the six-week ban did not violate the new constitutional amendment.
In a legal analysis on the reproductive rights amendment before the vote, that has often been used against him in the year since, Yost said the amendment “will make it harder for Ohio to maintain the kinds of law already upheld as valid prior to last year’s decision in Dobbs.”
“In other words, the Amendment would give greater protection to abortion to be free from regulation than at any time in Ohio’s history,” Yost wrote.
He went on to say that “many Ohio laws would probably be invalidated,” and that “others might be at risk to varying degrees.”
That included the so-called Heartbeat Act, according to him.
“Ohio would no longer have the ability to limit abortions at any time before a fetus is viable,” he wrote. “Passage of Issue 1 would invalidate the Heartbeat Act, which restricts abortions (with health and other exceptions) after a fetal heartbeat is detected, which is usually at about six weeks.”
Even so, Yost attempted to argue in the case that certain provisions included in the law should be allowed to stand.
Jenkins disagreed, saying the state constitution “now unequivocally protects the right to abortion” and that “to give meaning to the voice of Ohio’s voters, the Amendment must be given full effect, and laws such as those enacted by (Senate Bill) 23 must be permanently enjoined.”
He said that if Ohio courts adopted the state’s arguments, Ohio doctors who provide abortion care would continue to be at risk of felony criminal charges, $20,000 fines, medical license suspensions and renovations, and civil claims for wrongful death.
“Patients seeking abortion-care would still be required to make two in-person visits to their provider, wait twenty-four hours to receive abortion care, receive state-mandated information designed to discourage abortion and have the reason for their abortion recorded and reprinted,” Jenkins wrote. “Unlike the Ohio Attorney General, this Court will uphold the Ohio Constitution’s protection of abortion rights. The will of the people of Ohio will be given effect.”
ACLU of Ohio cooperating attorney Jessie Hill, who led the legal challenge in the case, called the ruling “momentous” and a show of “the power of Ohio’s new Reproductive Freedom Amendment in practice.”
Dr. Sharon Liner, medical director for Planned Parenthood Southwest Ohio Region and one of the parties in the case, said the ruling was “an important step in the right direction for access.”
“The permanent blocking of the six-week ban brings us one step closer to getting our patients the access they deserve,” Liner wrote in a statement.
Multiple requests for comment from the Ohio Attorney General’s Office went unanswered Thursday afternoon.
Ohio Right to Life and the Center for Christian Virtue were also contacted and have not yet provided a response.
Asked if Gov. Mike DeWine had any comment on the ruling, a spokesperson stated, “No.”
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