Abortion in Ohio: How the landscape changed in 2023, and where it's headed in 2024

COLUMBUS, Ohio (WCMH) – Abortion remained legal in Ohio through 21 weeks gestation throughout 2023, but the procedure’s legal landscape looks far different in December than it did in January.

The nation’s eyes were on Ohio this year as abortion was on the ballot, court dockets and the debate stage. Although the practicality of access to the procedure has not changed – there are still nine abortion clinics in the state, and dozens of restrictions remain in effect – Ohioans are ending the year with more certainty about the state of abortion than they started with.

Issue 1, effective Dec. 7, enshrined the right to abortion in the state constitution. Bans on the procedure before viability are prohibited, and any restrictions after viability would need to promote the health and safety of the pregnant person.

Republican lawmakers initially vowed to do everything in their power to keep the more than 30 laws restricting abortion on the books, although they’ve taken no concrete steps since Issue 1 passed in November to limit access to the procedure. And while Democratic lawmakers have introduced legislation to repeal restrictions like a 24-hour waiting period and transfer agreements for providers, such a proposal is unlikely to move very far in the Republican-controlled Statehouse.

The abortion rights amendment, which nearly 57% of voters approved, faced an existential threat before it even made it to the ballot. Republican legislators pushed through a proposed constitutional amendment to make future constitutional amendments more difficult to enact in an August special election – months after eliminating most August special elections. 

Official reasons for the failed amendment, which would have required future amendments to get 60% of the vote to pass, included protecting the state constitution from special interest groups. But many of the August amendment’s supporters explicitly linked its passage to the demise of the abortion rights amendment slated for a vote just three months later.

Abortion in Ohio faced challenges in state and federal courts as well. A long legal dispute regarding the state’s six-week abortion ban made its way to the Ohio Supreme Court, which heard oral arguments in September. Tasked with determining whether a block on the ban could remain in effect, the high court could have heavily restricted access to the procedure had the abortion rights amendment failed. 

In the few months in 2022 that the six-week ban was in effect, after the U.S. Supreme Court overturned Roe v. Wade, abortion rates fell drastically in Ohio. They rebounded after a Hamilton County judge placed a block on the ban last September, but the damage was done; according to data from the Ohio Department of Health, just under 18,500 abortions were performed in 2022 – the first time in at least a decade that fewer than 20,000 abortions occurred in the state.

But because Issue 1’s passage rendered the six-week ban in apparent violation of the state constitution, the high court decided in late December to punt the issue back down to the original Hamilton County judge hearing the case. The clinics that originally challenged the six-week ban have asked the Democratic judge to strike the law down in light of Issue 1.

What’s coming in 2024

As Ohio became the latest state to protect abortion after the elimination of a federal constitutional right to the procedure, fallout from existing restrictions – and looming court cases – pose threats to abortion care on state and national levels.

In mid-December, the U.S. Supreme Court announced it would hear a case regarding access to mifepristone, the drug most commonly used for medication abortions. The court will decide whether to uphold an appellate court’s ruling nullifying FDA rules that increased access to the medication.

The FDA approved the use of mifepristone to induce abortion in 2000. In 2016, it expanded the cutoff for use of the drug from seven weeks gestation to 10 weeks and loosened other restrictions on medication abortion. 

In 2022, the Alliance Defending Freedom, a conservative Christian legal advocacy group, challenged the FDA’s approval of mifepristone, arguing the agency failed to adequately consider the possible health effects of the drug. In August, the Fifth U.S. Circuit Court of Appeals ordered a pause on enforcement of post-2016 FDA rules but stopped short of tossing out FDA approval entirely.

Pregnancy – specifically, pregnancy loss – is on the court docket in Ohio as well. In Trumbull County, a grand jury will decide whether a woman will face criminal prosecution after she miscarried in her bathroom.

Brittany Watts, 34, was charged with felony abuse of a corpse after miscarrying into her toilet in September. She was 22 weeks pregnant, and after seeking medical care for severe cramping, was told that the pregnancy was not viable.

“She was told very clearly the fetus was not viable and could not and would not survive,” Watts’ attorney told NBC4’s sister station, Fox 8 in Cleveland.

At a court hearing in November, a forensic pathologist testified that the fetus died before leaving the birth canal. But Warren Assistant City Prosecutor Lewis Guarnieri argued whether the fetus died before it fell into the toilet was irrelevant.

“The issue isn’t how the child died, when the child died — it’s the fact that the baby was put into a toilet, large enough to clog up a toilet, left in that toilet and she went on [with] her day,” Guarnieri said.

Watts was taken to the hospital after her miscarriage. A nurse called the police on her, FOX8 reported.

Pregnancy-related prosecutions aren’t common, but they’re not unheard of. A legal expert told NBC News that while most prosecutions are related to conduct that occurred prior to pregnancy loss, Watts’ case represents a larger movement to establish the legal personhood of fetuses.