COLUMBUS, Ohio (AP) — The most far-reaching of Ohio’s laws restricting abortion was struck down on Thursday by a county judge who said last year’s voter-approved amendment enshrining reproductive rights renders the so-called heartbeat law unconstitutional.
Enforcement of the 2019 law banning most abortions once cardiac activity is detected — as early as six weeks into pregnancy, before many women know they’re pregnant — had been paused pending the challenge before Hamilton County Common Pleas Judge Christian Jenkins.
Jenkins said that when the U.S. Supreme Court overturned Roe v. Wade and returned power over the abortion issue to the states, “Ohio’s Attorney General evidently didn’t get the memo.”
The ACLU of Ohio sued on behalf of a group of abortion providers in the state, the second round of litigation filed to challenge the law.
“This is a momentous ruling, showing the power of Ohio’s new Reproductive Freedom Amendment in practice,” Jessie Hill, cooperating attorney for the ACLU of Ohio, said in a statement. “The six-week ban is blatantly unconstitutional and has no place in our law.”
“It feels really huge that the judge blocked it permanently,” Hill said. “It is a huge sense of relief.”
Jenkins said that Republican Attorney General Dave Yost urged his court to leave all but one provision of the 2019 law untouched “even after a majority of Ohio’s voters — presumably both women and men — approved an amendment to the Ohio Constitution protecting the right to pre-viability abortion.”
Hill, a law professor for Case Western Reserve University, said she sensed the frustration in the wording of Thursday’s ruling.
“I think the real tone of the judge’s opinion is that that’s not respecting the will of the people that was embodied in that amendment last November,” she said. “And so, you know, just kind of not at all pleased with the state’s approach to this issue.”
An initial lawsuit was brought in federal court in 2019, where the law was first blocked under the landmark 1973 Roe v. Wade decision. It was briefly allowed to go into effect in 2022 after Roe was overturned. Opponents of the law then turned to the state court system, where the ban was again put on hold. They argued the law violated protections in Ohio’s constitution that guarantee individual liberty and equal protection, and that it was unconstitutionally vague.
After his predecessor twice vetoed the measure citing Roe, Republican Ohio Gov. Mike DeWine signed the 2019 law once appointments by then-President Donald Trump had solidified the Supreme Court’s conservative majority and raised hopes among abortion opponents.
The Ohio litigation has unfolded alongside a national upheaval over abortion rights that followed the Dobbs decision that overturned Roe, including constitutional amendment pushes in Ohio and a host of other states. Issue 1, the amendment Ohio voters passed last year, gives every person in Ohio “the right to make and carry out one’s own reproductive decisions.”
Yost acknowledged in court filings this spring that the amendment rendered the Ohio ban unconstitutional, but sought to maintain other elements of the 2019 law, including certain notification and reporting provisions.
"Ohio voters have spoken," the judge's conclusion reads, in part. "The Ohio Constitution now unequivocally protects the right to abortion. The State cannot properly undermine this right unless it satisfies an exception set forth in the Amendment by using the least restrictive means to advance the individual's health in accordance with widely accepted and evidence-based standards of care."
Yost's office issued the following statement following the judge's decision:
"This is a very long, complicated decision covering many issues, many of which are issues of first impression. Under the Rules of Appellate Procedure, the State has up to thirty days to determine next steps. We will review the Court’s order in accordance with that timeframe."
Jonathan Entin, a constitutional law professor with Case Western Reserve University, said he fully expects Yost’s office to file with the First District Court of Appeals continuing the argument that other parts of the Heartbeat Bill might still be permissible and challenging the legal authority of those who filed the case against the state.
“I think the attorney general could well argue on the appeal that the plaintiffs in this case, who are medical professionals and abortion providers, don’t have legal standing to challenge abortion restrictions,” Entin said.
That argument would imply only pregnant patients have the ability to challenge abortion laws, but Entin said that approach has not seen much success when used in other similar federal court cases.
Entin expects the Ohio Supreme Court to eventually rule on the matter but called the decision by Jenkins “important” as the first case to come to a final judgment under the Reproductive Rights Amendment.