Lawsuit against six-week abortion ban goes before Ohio Supreme Court in September

COLUMBUS, Ohio (WCMH) – The state of Ohio’s six-week abortion ban is one step closer to being resolved.

The Ohio Supreme Court announced Thursday that oral arguments in the case regarding the state’s “Heartbeat Act” will be held Sept. 27, about six weeks before Ohioans will likely vote whether to enshrine the right to abortion in the state constitution. Each side will have 15 minutes before the court to argue whether a preliminary injunction on the law can remain in effect.

The “Heartbeat Act,” signed into law in 2019, bans most abortions after fetal cardiac activity can be detected – or around six weeks gestation. It provides no exceptions for rape or incest.

It establishes a felony charge for physicians who perform abortions after six weeks, except to save the pregnant person from death or the permanent loss of a major bodily function. Abortion providers can also be sued by patients under the law and are subject to discipline by the state medical board.

After the “Heartbeat Act” passed, a federal court blocked the law from taking effect as a direct 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.

Five abortion clinics asked the Ohio Supreme Court last September to block the law, but it dismissed the case two days after its filing. The clinics again filed suit, in Hamilton County.

In the month or so between the lifting of the injunction and a Hamilton County judge’s temporary block of the statute, the six-week ban was the rule of law in Ohio. During that time, the state saw its sharpest decline in abortions that year – nearly 1,000 fewer occurred than the month before, according to the Society of Family Planning.

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 appeal on the grounds that preliminary injunctions are not the type of final judgment that can be appealed.

It is that question – of whether Yost can appeal a preliminary injunction – that the Ohio Supreme Court will decide, as well as whether the clinics had standing to sue in the first place.

In his merit brief, Yost argued that barring the state from appealing a preliminary injunction on a law breaches the separation of powers among the state’s branches of government. It allows judges to “hold state laws hostage,” Yost contended, because a party has brought suit, amounting to irreparable harm to the state.

“The State enacted the Heartbeat Act with the goal of protecting innocent life,” Yost wrote. “Every otherwise-prohibited abortion that is performed while the injunction remains in place inflicts the most irreparable injury of all — death — on the unborn babies the State adopted the Act to protect.”

Yost also claimed that the abortion clinics do not have standing to sue on behalf of their patients because the clinics did not satisfy the necessary requirements for third parties to sue. Because of that, Yost argued, the Ohio Supreme Court should toss out the preliminary injunction altogether.

In response, attorneys for the clinics argued Yost’s own request would violate the separation of powers by creating a “categorical exception” to legal precedent for the state to appeal a pre-trial order.

“This approach is the antithesis of both the separation of powers envisioned by the Ohio Constitution and the statutory framework for the appealability of provisional remedies enacted by the Ohio legislature,” the clinics’ attorneys wrote.

The clinics’ attorneys called Yost’s arguments about their ability to sue “threadbare” and argued the case law allowing abortion providers to sue on behalf of patients is well-established – 50 years ago, when Roe v. Wade was decided. Subsequent cases, both at the federal and state level, have only affirmed that ability.

Each side will have 15 minutes to plead their case. Depending on the outcome, the case will go back to the Hamilton County judge to consider whether the law violates the Ohio Constitution – if the Ohio Supreme Court rules that the clinics have standing to sue.