What's the future of Ohio's ban on most abortions? Justices raise questions Wednesday

Ohio Solicitor General Benjamin Flowers makes his argument before the Ohio Supreme Court on the state's 2019 ban on most abortions.
Ohio Solicitor General Benjamin Flowers makes his argument before the Ohio Supreme Court on the state's 2019 ban on most abortions.

Ohio Supreme Court justices offered a glimpse into how they might rule on whether to reinstate Ohio's ban on most abortions − a decision that could have sweeping consequences for abortion lawsuits across the nation.

At issue is Ohio's 2019 ban on doctors performing abortions after embryonic cardiac activity is detected, which is about six weeks gestation. Physicians who break that law face prison, lawsuits and loss of their medical licenses. After the U.S. Supreme Court overturned Roe v. Wade in 2022, Ohio's abortion ban took effect for 82 days before a Hamilton County judge put it on hold indefinitely.

Judge Christian Jenkins, a Democrat, ruled that "abortion is health care to which Ohioans have a right."

Ohio Attorney General Dave Yost, a Republican, appealed that decision to the Ohio Supreme Court, which heard arguments from attorneys on both sides of the issue Wednesday.

The seven justices aren't deciding whether the Ohio Constitution protects abortion access; they punted on that question. Instead, they will review:

  • Whether Yost can appeal this case at all. Jenkins hasn't issued a final judgment, which is typically what triggers an appeal. The First District Court of Appeals ruled that Yost was skipping steps.

  • Whether abortion clinics can sue on behalf of their patients. The legal term is called "standing" and it could impact how abortion cases are litigated nationwide.

Wednesday's oral arguments come as Ohioans prepare to vote on November's Issue 1, which would enshrine abortion access in the state constitution. The case draws attention to the abortion restrictions that Ohio's GOP-controlled Legislature passed, leading pregnant Ohioans to seek abortions out-of-state for nearly three months.

Who has the right to challenge Ohio's abortion ban?

Justice Pat Fischer questions attorney Jessie Hill during oral arguments about a 2019 ban on most abortions in Ohio.
Justice Pat Fischer questions attorney Jessie Hill during oral arguments about a 2019 ban on most abortions in Ohio.

Justice Pat Fischer, a Republican and sometimes swing vote on the court, asked what was stopping pregnant Ohioans, rather than clinics, from suing over Ohio's abortion limits.

“What’s the hindrance with a woman of baby-bearing age standing up with her initials and saying ‘I’ve got standing?’” Fischer asked.

Attorney Jessie Hill, who is representing Ohio abortion clinics, said it's not that easy.

“An individual who is seeking to end a pregnancy is seeking very time-sensitive healthcare," Hill said. "They have a matter for weeks in which to bring that lawsuit. They may be dealing with other financial issues, other healthcare concerns. They are not in a position to hire an attorney, bring a lawsuit, seek an injunction.”

After the hearing, Dr. Mae Winchester, a physician with Preterm-Cleveland, said: “To force someone, at that very vulnerable point in their life, to enter into litigation to help them protect their own healthcare decisions is actually really cruel."

Ohio Right to Life President Mike Gonidakis contended that patients were the right people to file these lawsuits. They could use acronyms or pseudonyms to hide their identities.

Fischer also asked whether a father or grandparent had the right to sue to block an abortion, arguing that they had a more personal relationship with the pregnant woman than her doctor.

“If it’s that broad of standing, why wouldn’t then a grandparent or a putative father have standing to oppose the abortion?” Fischer said. “Couldn’t a grandparent of the putative child or a putative father of the child have that same standing to save that child’s life?”

Hill contended that a pregnant patient seeking an abortion and the patient's doctor had the same goal: to end the pregnancy. A father or grandparent might have a different goal: to prevent the abortion. Their interests don't align, she said.

If the Ohio Supreme Court decides clinics can't sue on behalf of patients, that could have consequences for lawsuits brought elsewhere.

When can you appeal?

Justice Pat DeWine, a Republican, asked whether local judges have too much power to block state laws.

"Your conception of final orders seems to give a trial court judge in one county extraordinary powers to enjoin a law and the judge in Meigs County could say that all of Ohio’s housing discrimination laws are unconstitutional, schedule a trial that’s going to last a couple of years and the state wouldn’t be able to appeal. Are there any limits to that?” DeWine asked.

Attorney Jessie Hill represents abortion clinics in the lawsuit challenging Ohio's 2019 abortion ban.
Attorney Jessie Hill represents abortion clinics in the lawsuit challenging Ohio's 2019 abortion ban.

Hill argued that Yost's office, rather than the court, was to blame for the delays: “If there has been a long delay in this case, it is because the state has repeatedly appealed an order that it is not permitted to appeal.”

Ohio Solicitor General Benjamin Flowers said it's important for the state to be able to challenge judge's decisions blocking state laws, whether that be abortion or gun policy.

“This argument is not about abortion. It’s about much broader issues,” Flowers said. “If they’re right, we have no basis for appealing those flagrantly unconstitutional decisions once the injunction issues. So what they are really seeking is a special rule for abortion, and that’s exactly the kind of jurisprudence that destroyed irreparably the U.S. Supreme Court’s reputation. We ask this court not to follow the same path.”

For that reason, Gonidakis called this case the most consequential one in decades. "The court has to fix this, and if they don’t the legislature’s going to have to.”

What's the court's history on abortion decisions?

While Roe v. Wade was intact, most abortion policy disputes were filed in federal court. Now, many of those cases will end up in the Ohio Supreme Court − with a less established track record to prognosticate how justices might rule.

The Ohio Supreme Court is composed of four Republicans, including Chief Justice Sharon Kennedy, and three Democrats.

Justice Joe Deters recused himself because he was named in the initial lawsuit. As Hamilton County prosecutor, Deters might have been tasked with prosecuting illegal abortions. Judge Matthew Byrne, of the 12th District Court of Appeals, will fill in for Deters. Byrne served on the advisory board of Pregnancy Center East, an anti-abortion counseling center.

In 2018, the Ohio Supreme Court ruled against abortion clinics in Toledo and Cleveland. The clinic in Toledo no longer performs surgical abortions because of that decision, which three current GOP justices − Kennedy, Justice Pat Fischer and Justice Pat DeWine − signed off on.

More recently, the Ohio Supreme Court ruled that one part of the ballot language on the abortion rights amendment was inaccurate and needed to be changed but left most of the Republican wording intact. Fischer joined with three Democratic justices to order the tweak.

Jessie Balmert is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.

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This article originally appeared on Cincinnati Enquirer: What's the future of Ohio's abortion ban? Supreme Court to decide