Ohio Supreme Court to review legal questions on abortion, not whether Constitution protects it

Jessie Balmert, Cincinnati Enquirer
·2 min read
18
Hundreds of people rallied at the Ohio Statehouse and marched through downtown Columbus in support of abortion after the Supreme Court overturned Roe vs. Wade in June.
Hundreds of people rallied at the Ohio Statehouse and marched through downtown Columbus in support of abortion after the Supreme Court overturned Roe vs. Wade in June.

The Ohio Supreme Court agreed to review a couple of legal questions about whether abortion clinics can challenge the state's ban on most abortions, but not the underlying question of whether the Ohio Constitution creates a right to abortion.

In a 4-3 decision, justices on Tuesday decided to review two legal questions:

  • Whether the Ohio attorney general can appeal orders preliminarily blocking state laws.

  • Whether abortion clinics can challenge the state’s 2019 ban on most abortions on behalf of clients.

The Ohio Supreme Court will not review whether the Ohio Constitution creates a right to abortion. Three Republican justices, Chief Justice Sharon Kennedy, Justice Pat DeWine and sitting Judge Matthew Byrne, wanted the court to review that issue, too. The three Democratic justices dissented.

That left Republican Justice Pat Fischer in the middle, agreeing to review the legal questions but not whether there is a constitutional right to abortion.

At issue is a 2019 Ohio law that bans doctors from performing abortions after cardiac activity is detected. That law took effect after the U.S. Supreme Court overturned the landmark abortion case Roe v. Wade in June 2022.

For several months, Ohioans' access to abortion was dramatically reduced. Nearly 400 Ohioans, including a 10-year-old girl, traveled out of state to get an abortion between June and September when a Hamilton County Common Pleas Court judge put the law on hold.

Ohio Attorney General Dave Yost, a Republican, appealed that judge's decision to the Ohio Supreme Court, which on Tuesday decided to hear a portion of the case.

Yost said the question of whether abortion clinics can challenge abortion restrictions on behalf of their patients is "critically important." In certain circumstances, the clinics' financial interest might not align with patients' health concerns.

"Third-party standing is very rare, but it's routinely used in abortion cases," Yost said. "This is going to set the rules of the road in court for Ohio for years to come."

The Ohio Supreme Court comprises four Republican justices and three Democratic justices.

Justice Joe Deters, whom GOP Gov. Mike DeWine recently appointed to the bench, recused himself because he and other county prosecutors were listed as parties to the lawsuit.

Chief Justice Kennedy appointed Judge Byrne, of the 12th District Court of Appeals, to replace Deters. Byrne serves on an advisory board for Pregnancy Center East, an anti-abortion counseling center, Cleveland.com first reported.

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.

Get more political analysis by listening to the Ohio Politics Explained podcast

This article originally appeared on Cincinnati Enquirer: Ohio Supreme Court isn't reviewing whether Constitution protects abortion