Ohio faces uncertain implementation of abortion protection amid legal challenges

Ohio’s new constitutional protections for abortion access and other reproductive rights take effect Dec. 7, a month after voters resoundingly passed them. How and when their impacts are felt remains unclear.

Existing abortion-related lawsuits are moving again through the courts now that voters have decided the issue, raising questions about implementation.

The amendment declared an individual’s right to "make and carry out one’s own reproductive decisions" and passed with a strong 57% majority. It was the seventh straight victory in statewide votes for supporters of abortion access nationally since the U.S. Supreme Court overturned constitutional protections.

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But the amendment voters approved Nov. 7 did not repeal any existing Ohio laws, prompting some anti-abortion activists to step up pressure on Republican elected officials to extend their efforts to halt, delay or significantly water it down.

"A lot of that hard work of figuring out what state laws are inconsistent with the amendment and what state laws can remain, does tend to devolve to the courts," said Laura Hermer, a professor of law at Mitchell Hamline School of Law in St. Paul, Minnesota, who studies access to health coverage and care in the U.S. "It’s difficult to imagine that the Legislature will say, ‘All right, you win. We’re going to repeal the heartbeat ban' and so forth."

The state Legislature is controlled by Republicans whose leaders opposed the November ballot amendment, which was known as Issue 1. The Ohio Supreme Court also is controlled by Republicans, who have a 4-3 majority, and will be the final judge of constitutional questions. Several of the Republican justices have taken actions or made statements over the years that have caused abortion rights organizations and ethics attorneys to question their objectivity on the subject.

Minority Democrats in the Ohio House announced legislation two days after the election aimed at avoiding a piecemeal approach to implementing the amendment. Among other steps, they called for repealing the state’s ban on most abortions after fetal cardiac activity is detected, which is around six weeks, and a 24-hour waiting period.

"There are over 30 different restrictions in place," said state Rep. Beth Liston, a physician and co-author of the Reproductive Care Act. "And I think that it is important that we don't require citizens to go to court for every restriction, and, quite frankly, that we don't let harm occur in the interim."

House Minority Leader Allison Russo was careful not to criticize the high court, which holds sway over the fate of those laws.

"My hope is they will uphold the rule of law and the constitution," she said.

Chief Justice Sharon Kennedy last week ordered lawyers for the state and a group of abortion clinics to tell the court how they believe the measure’s passage has affected a case involving Ohio’s ban on most abortions once fetal cardiac activity is detected, which has been on hold since October 2022.

A day after voters approved the amendment, U.S. District Judge Michael Barrett made a similar request of the parties in a long-running federal lawsuit challenging a set of state restrictions imposed on abortion providers’ operations. They included a requirement that clinics obtain agreements with a nearby hospital for emergency patient transfers, as well as a prohibition against public hospitals entering into those agreements.

At least three other Ohio abortion laws also have been on hold in the courts.

Passing legislation to bring Ohio law in line with the new constitutional amendment has so far been a non-starter with Republican lawmakers, who mostly opposed it and took extraordinary steps to defeat it.

With a primary election in their GOP-heavy districts only months away, they are facing fierce pressure from anti-abortion groups to go in the other direction and either pass laws countering the amendment or using their supermajorities to strip courts of their power to interpret it.

"The (Ohio) Constitution specifically says reigning in out-of-control courts is the legislators' job," the anti-abortion group Faith2Action argues in a recently released video. "So let's call on the legislators to do their job, to use their constitutionally granted right to represent us and to keep pro-abortion judges from repealing Ohio laws based on an amendment that doesn't even mention a single Ohio law."

The video argues that the "right to life" created in Ohio's constitution is inalienable and that the U.S. Supreme Court's decision overturning Roe v. Wade punted the abortion issue to "the people's elected representatives."

But in his concurring opinion in that ruling, Justice Brett Kavanaugh, an appointee of former President Donald Trump, wrote that constitutional amendments were among the avenues for deciding the future of abortion access.

"Moreover, the Constitution authorizes the creation of new rights — state and federal, statutory and constitutional," Kavanaugh wrote. "But when it comes to creating new rights, the Constitution directs the people to the various processes of democratic self-government contemplated by the Constitution — state legislation, state constitutional amendments, federal legislation, and federal constitutional amendments."

For now, Republican Ohio House Speaker Jason Stephens has said legislation targeting the power of state courts will not be considered. GOP Senate President Matt Huffman has ruled out lawmakers pushing for an immediate repeal of Issue 1, as had once been suggested, saying nothing like that should be tried, at least in 2024.

How Attorney General Dave Yost will proceed also is being closely watched.

In a legal analysis of Issue 1 that the Republican published before the election, Yost said the amendment created a new standard for protecting abortion access that "goes beyond" the law of the land under Roe v. Wade.

"That means that many Ohio laws would probably be invalidated ... and others might be at risk to varying degrees," he wrote.

Hermer, the law professor, said that statement is convenient for lawyers fighting to implement the constitutional amendment but such an analysis isn't legally binding for Yost.

"He doesn’t necessarily have to stand down, but, of course, having already said that, it’s going to make it a bit more difficult to hold those sorts of positions," she said.