Local reps’ bill would prevent courts from hearing challenges to abortion laws under Issue 1

It’s an anti-abortion answer to Issue 1, a constitutional amendment supported last November by nearly 57% of voters.

The amendment mandates that the state shall not impede on an individual’s reproductive decisions, putting numerous Ohio laws restricting abortion access in jeopardy. But it does not automatically repeal or erase any laws from the Ohio Revised Code, instead requiring Ohio courts to hear challenges to existing laws and rule on whether they are unconstitutional in light of Issue 1.

What would the bill do?

H.B. 371, championed by Reps. Jennifer Gross, R-West Chester, and Bill Dean, R-Xenia, aims to block Ohio courts’ ability to hear challenges to abortion laws. It would do this by automatically dismissing new or pending lawsuits and vacating any existing court rulings regarding Issue 1.

Gross told this news organization that doing so would prevent judges from “legislating from the bench.”

“We would take the ability for them to interpret law, and the law would have to be interpreted through the legislature when it affects Issue 1, that’s simply all that it does,” said Gross, who was adamant that her proposal would not undo Issue 1 nor go against the vote of the people.

Credit: AP

Credit: AP

When this news organization asked Gross whether she believed that the courts should have no responsibility to determine whether laws are in accordance with the state constitution, she explained her belief that Issue 1 is broadly in conflict with other aspects of the state’s fundamental law.

“It is my proposal to you that, with regard to Issue 1 — since Article 1, Section 1 of the Ohio Constitution states we will defend life, and we swore to uphold that constitution — that Issue 1 should be implemented by the people’s voice, the legislature,” Gross said. “In a representative republic, that is the proper place and the proper procedure.”

But Democrats and others, including the leader of the House GOP caucus, have interpreted the legislation as not only an affront to Ohioans’ Issue 1 vote, but as an attempt to to skirt the checks and balances fundamental to Ohio’s political system.

“This is ‘Schoolhouse Rock!’ type stuff and we need to make sure we hit the three branches of government. The constitution is what we abide by,” said House Speaker Jason Stephens, R-Kitts Hill, last November when he was asked about a promise Gross, Dean and other anti-abortion House lawmakers made to “consider removing jurisdiction from the judiciary” and that the “legislature alone will consider what, if any modifications to make to existing laws.”

Despite leadership’s disapproval, H.B. 371′s formal introduction to the House early this year and its subsequent referral to the House Civil Justice Committee will give the bill a chance to be considered.

“Right now, we haven’t had a lot of discussion,” Gross said when she was asked about how she expects her proposal to be received. “I’m sure you’ve seen what other people have said in the media prior to this. I hope to gain and garner more support as people begin to understand that it does not negate the people’s voice, that it simply places the implementation of Issue 1 through the legislature and that my colleagues would join me in this, but that of course is an individual decision which is up to them.”

Could the bill work?

Lawyers and constitutional scholars told this news organization that, even if the bill were to become law, it would have another uphill battle to fight in the courts.

“I would find it inconceivable that the courts would uphold legislation like this,” said Steven H. Steinglass, dean emeritus and professor emeritus at the Cleveland State University College of Law, in an interview with this news organization. He called H.B. 371 a “remarkable exercise in political theater.”

“I find it amazing that one small piece of legislation could, at the same time, violate so many well-established principles of Ohio constitutional law,” Steinglass said.

He said the proposal violates the longstanding principle of judicial review in Ohio; interferes with the original jurisdiction of the Ohio Supreme Court, which he said “could neither be expanded nor subtracted by the Ohio General Assembly,” along with the original jurisdiction of the state’s appellate courts; violates the doctrine of separation of powers in Ohio; and violates the state’s due process of law, required by the Ohio constitution, by denying a party the authority to raise claims under the Ohio Constitution.

“There is no historical, legal, doctrinal or other basis for giving the power to construe Ohio law, including the Ohio Constitution, to the general assembly,” Steinglass concluded.

But not all legal scholars agree.

Marc Clauson, professor of history and law at Cedarville University and a constitutional scholar, told this news organization that it’s been “difficult” for him to figure out if the bill could survive judicial review. He said if H.B. 371 became law, it would raise the question of whether the legislature has the remit to pointedly revoke longstanding jurisdiction.

For Clauson, certain phrases in the Ohio Constitution’s provisions on jurisdiction do open the window for legislative intervention, “but we’re not sure exactly how far they go in doing that.”

For example, when the Ohio Constitution gives Ohio’s courts of common pleas jurisdiction over a broad range of matters, it adds that the jurisdiction “may be provided by law.” Gross and Dean are hoping the courts would interpret that clause to give the legislature the absolute power to block the courts’ ability to hear certain cases.

But Steinglass said that language, and similar phrases throughout the constitution pertaining to the courts, has historically been interpreted to give the legislature power to allocate cases amongst different divisions of the court, not do away with the jurisdiction entirely. He added that there’s “nothing within the language ... that gives them the right to adopt a subject matter exception to the jurisdiction of the courts.”

Jessie Hill, a law professor at Case Western Reserve University and an attorney that frequently works with the American Civil Liberties Union of Ohio to challenge the state’s abortion restrictions, told this news organization that the proposal would likely be ruled unconstitutional.

“One problem is just that the legislature doesn’t get to take all power away from the courts, for example, then they could say courts have no jurisdiction over anything, right? That can’t be what it means and no one has really thought it meant that,” Hill said.

She added that H.B. 371 itself conflicts with Issue 1, which has been a part of the state’s fundamental law since Dec. 7.

“The one thing that’s clear is that the Constitution is supreme over regular laws,” Hill said.

Judicial experts will be watching the debate over H.B. 371 closely.

“A legislature trying to prevent the judicial branch from interpreting a constitutional amendment. I’ve never heard or read of that before,” Clauson said. “It would be breaking new legal ground”

Here’s the text of the proposal: