“Abortion is still legal in Ohio up to 22 weeks (since the individual’s last menstrual period) thanks to an injunction against the so-called Heartbeat Bill in October, but the case is being appealed, and sooner or later, the Ohio Supreme Court is going to review this case,” said Freda Levenson, legal director for ACLU Ohio. “Given the composition of the court, they will likely reverse the injunction, which will put the Heartbeat Ban into effect.”
Where the case began
After Roe V. Wade was overturned, Ohio Attorney General Dave Yost allowed the Ohio Heartbeat Law (Senate Bill 23, signed in 2019) to take immediate effect.
In September, Planned Parenthood and Ohio abortion clinics filed suit in Hamilton County Common Pleas Court, challenging the Heartbeat Law in full, and seeking a preliminary injunction for now. In October, Hamilton County Judge Christian Jenkins issued that preliminary injunction, temporarily halting the Heartbeat Law pending a trial.
The legal challenges to Ohio’s Heartbeat Law fall under claims that it violates the state constitutional rights of due process, liberty, equal protection, and privacy. After an evidentiary hearing for the preliminary injunction, Jenkins said the Ohio Constitution gives all Ohioans a right to “privacy, procreation, bodily integrity and freedom of choice in health care decision-making that encompasses the right to abortion.”
He said the Heartbeat Law infringed on those rights.
Additionally, the legal challenge to Ohio’s Heartbeat Law also falls under the interpretation of a health care amendment that has already been in place for the last decade. Ohio’s Health Care Freedom Amendment was approved by voters on a ballot measure in November 2011, and it protects Ohioans’ right to purchase health care. It states, “[n]o federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.”
An analysis by the Kaiser Family Foundation said that while the intent of this amendment, along with a similar one in Wyoming, was to block implementation of the Affordable Care Act, the broad language has allowed providers and advocates in Ohio to argue that these measures create a general constitutional right to make health care decisions.
State appeals
The state appealed the preliminary injunction issued in the trial court in Hamilton County to Ohio’s First District Court of Appeals. That appellate court raised the question of whether it had the jurisdiction to rule on the injunction as the injunction was a preliminary one and not a permanent one.
The appellate court’s ruling found that the injunction had been appealed prematurely as the trial court has not yet finished its case.
“We conclude that we lack jurisdiction over the state’s appeal. We accordingly dismiss this appeal, but of course any aggrieved party can appeal after the trial court issues its final judgment in the case,” the appeals court ruling said. “Our answer on the merits of this dispute and the underlying constitutionality of the statute … must await another day.”
While the appellate court’s ruling should have sent the case back to the trial court, Ohio Attorney General Dave Yost then appealed the appellate court’s decision to the Ohio Supreme Court. In his brief, Yost said the state appellate court erred in dismissing the state’s appeal of the preliminary injunction. Yost then asked the Ohio Supreme Court to the overturn the appellate court’s decision.
“If allowed to stand, the First District’s ruling will leave the state with no way to protect legislation from egregiously wrong preliminary injunctions,” Yost’s brief says. “Trial courts that issue such injunctions have every incentive to drag out lower-court proceedings, ensuring their orders remain in effect —and that state laws with which they disagree remain unenforceable—for as long as possible.”
Yost’s brief also says “the court should also grant review to decide whether there is right to abortion and, if there is, whether abortion providers rather than women seeking abortions may sue to enforce it.”
Moving forward
As the courts continue to debate procedures, deciding first which court will have jurisdiction over an appeal of the preliminary injunction or whether the case will be sent back to the trial court to finish its case, the political leanings of the Ohio Supreme Court has changed in the new year. Former Chief Justice Maureen O’Connor, a Republican who would sometimes cast a swing vote with Democrats, left the court on Dec. 31. Justice Sharon Kennedy was elected as her replacement, and former Hamilton County Prosecutor Joe Deters, a Republican, was appointed to fill the vacant seat.
Within the new court, the split is four Republican judges and three Democrats, but in the Ohio Supreme Court case filings, Deters recused himself from this case, leaving an even split of three Republicans and three Democrats.
Ballot measure
Despite the ongoing legal challenges in court, groups in support of abortion access are seeking to put abortion on the ballot in Ohio as early as November 2023 to let Ohioans decide whether they want to codify that access in the state constitution.
Ohioans for Reproductive Freedom has retained Mission Control, Inc., to be the general consultant to oversee the campaign strategy for the ballot measure, according ACLU Ohio. The campaign also announced that it has completed the initial language drafting of the ballot measure and plans to file the language with the Ohio Attorney General’s Office before the end of February.
“We are working expeditiously and prudently because we know that skipping steps or rushing the process would be a reckless approach when the stakes are so high,” said Erin Scott, spokesperson for Ohioans for Reproductive Freedom.
Ohio Right to Life responded to this announcement, saying the organization believes efforts to change the Ohio Constitution in this way will fail.
“Ohio is a pro-life state, and we believe in the value and beauty of every human life,” Ohio Right to Life’s CEO Peter Range said. “Any attempt to change Ohio’s Constitution by these large out-of-state abortion groups will ultimately fail here in Ohio. We respect the dignity of both mother and child in the Buckeye State.”
Jeremy P. Kelley and the Associated Press contributed to this story.
Where do other states stand?
Of the states neighboring Ohio, abortion is legal in Michigan and Pennsylvania. In November 2022, Michigan voters approved a ballot measure for a constitutional amendment recognizing the right for individuals to have access to abortion. Abortion is legal in Michigan until fetal viability, which is usually between 23 and 24 weeks in gestation. In Pennsylvania, the current gestational limit is 24 weeks after the individual’s last menstrual period.
In Indiana, the current gestational limit is 22 weeks from the individuals last menstrual period. State abortion bans were blocked in September 2022, and in October, the Indiana Supreme Court upheld the injunction, according to the Kaiser Family Foundation.
Abortion is currently illegal in Kentucky, Tennessee, and West Virginia. In Illinois, state law protects access to abortion.
In total, abortion is banned in 13 states, there is a six-week ban in effect in one state (Georgia), there is a gestational limit between 15 and 22 weeks in 11 states, and abortion is legal beyond 22 weeks since the individual’s last menstrual period in 25 states, plus Washington, D.C.
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