COLUMBUS, Ohio (WCMH) – Before Ohio voters decide whether to constitutionally protect the right to abortion, the Ohio Supreme Court may allow a six-week ban on the procedure to take effect.
The high court heard oral arguments Wednesday in a state challenge to a temporary block on the “Heartbeat Act,” a law banning most abortions after fetal cardiac activity can be detected, or around six weeks gestation. If the Republican-led court rules with the state, the six-week ban will become law unless courts later decide it is unconstitutional – or voters pass Issue 1 in November.
Soon after its passage in 2019, a federal judge blocked the six-week ban from taking effect as a violation of Roe v. Wade. Within hours of the U.S. Supreme Court’s overruling of Roe v. Wade last June, Ohio Attorney General Dave Yost asked the court to lift the injunction, which it did.
Last October, the Hamilton County judge issued a preliminary injunction against the six-week ban, rendering it unenforceable until the resolution of the case. Yost appealed the decision to a federal court, which threw out the request on the grounds that under the state constitution, preliminary injunctions are not the type of final judgment that can be appealed.
But the Ohio Supreme Court decided to hear the question, and on Wednesday, Benjamin Flowers, representing the state, argued that the appealability of preliminary injunctions is a “two-way street” – if plaintiffs can appeal the denial of a preliminary injunction, the state should be able to appeal its implementation.
Between frequent interruptions by the justices, Flowers argued the state’s authority to appeal the block of the “Heartbeat Act” is rooted in its interest in preventing “irreparable, irreversible” harm. By allowing abortions to occur that otherwise would be outlawed under the six-week ban, Flowers argued the courts are allowing an irreversible medical procedure to proceed despite the state’s objection.
“All we’re asking for is the same rules to apply to both sides,” Flowers said. He said that disallowing appeals on preliminary injunctions gives individual judges “unilateral” power to prevent a law from taking effect.
In an interview with NBC4, Mike Gonidakis, president of Ohio Right to Life, said that abortion providers found a “loophole” in the law to block the six-week ban from taking effect.
“The statehouse passed a law and the governor signed it, and now because a local judge doesn’t like it, we’re at the mercy of this judicial system that can play out however long it wants,” Gonidakis said.
But Jessie Hill, lead attorney for the ACLU of Ohio and the lawyer representing the abortion clinics, argued that if the state were allowed to appeal the lower court’s block on the six-week ban, it would be given immense latitude. Any preliminary injunction on a state law, pending a challenge to that law, could be considered an irreversible and irreparable harm to the state.
Piggy-backing off of Flowers’ argument, Justice Pat DeWine asked Hill whether, by ruling preliminary injunctions unappealable, the court would open the judicial system to “forum-shopping” – when prospective plaintiffs strategically sue in a court they believe more favorable to their argument.
If the state wanted to be able to appeal a preliminary injunction, Hill said the legislature could easily change the law to allow so.
“The state can certainly always assert ‘important interest’ behind its laws, and then say that for every day that its laws are not enforced, the state is irreparably harmed,” Hill said. “That would create an enormous exception that the legislature did not write and that the Ohio Constitution does not permit.”
Can abortion clinics sue in the first place?
The Ohio Supreme Court may also decide whether the five abortion clinics that challenged the six-week ban had standing to sue.
The state has asked the court to reject the clinics’ claim to standing, asserting that abortion providers don’t meet the requirements to establish a third-party claim. Among other things, third parties must demonstrate that their rights are significantly interconnected with the rights of those most directly affected by a law or decision.
The state asserts that only those seeking abortions should be able to challenge the six-week ban. To that end, Flowers argued that recognizing abortion providers as appropriate parties in the lawsuit flies in the face of principles of standing – and arises out of what he said was erroneous court precedent overruled last June by Dobbs v. Jackson.
“What they’re really seeking is an exception for abortion,” Flowers said.
Justice Pat Fischer questioned what barriers, if any, stand between a pregnant person and their ability to challenge the six-week ban in court.
“What’s the hindrance to a woman standing up and saying she has standing?” Fischer asked Hill.
Hill pointed to multiple factors – namely, that abortions are extremely time-sensitive and require resources and up to thousands in cash on-hand to obtain.
“They are not in a position to hire an attorney, bring a lawsuit, seek an injunction,” Hill said. “And even if they were going to bring it, they’re not going to be pregnant for very long.”
Hill argued that the case is a “paradigm” one for third-party standing, and said that abortion providers are better suited to bring legal challenges. Under the six-week ban, abortion providers face criminal penalties and disciplinary action for performing the procedure after detecting fetal cardiac activity. And because those seeking abortions rely on medical providers to obtain the procedure, Hill said, clinics’ rights are integral to the rights of pregnant people.
As former Hamilton County prosecutor and named party in the original suit, Justice Joe Deters recused himself from the case. In his place was Judge Matthew Byrne from the state’s 12th district appellate court. He previously served on the advisory board of an anti-abortion counseling center in Cincinnati.
The Supreme Court typically takes months to issue a ruling, but with a key vote on abortion six weeks away, Hill told NBC4 that access to the procedure is on a “razor’s edge.”
Ohioans will vote on a reproductive health constitutional amendment in November, which would enshrine the right to abortion up until fetal viability. Whether the court rules before or after the election, Hill said, abortion rights advocates are focused on securing the votes for Issue 1.
“Passing the ballot initiative, in particular, is absolutely key, because the justices are poised to reinstate and reimpose a six-week abortion ban,” Hill told NBC4.
Regardless of how the court decides, the challenge to the six-week ban will return to the lower court for trial — and may very well make its way back up to the state’s highest court for constitutional review.