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Ohio AG: six-week abortion ban unconstitutional, but Supreme Court case should go on

Dan Konik

The parties in the lawsuit in the Ohio Supreme Court over the state’s ban on abortion after six weeks filed arguments yesterday on how Issue 1, the new abortion access amendment, affects the case. Republican Attorney General Dave Yost admitted in his brief what he said during the campaign about the constitutionality of the ban under the new amendment, but says that shouldn’t end the case.

Yost wrote in his filing that while Issue 1 makes the six-week ban unconstitutional, the court should continue to hear the case because there are other non-abortion related issues involved.

Whether the six-week ban is constitutional was not part of the Ohio Supreme Court case. It centered on whether a preliminary injunction against a state law can be appealed and whether abortion providers have standing to file the lawsuit against the six-week ban.

"The State recognizes that significant portions of the Heartbeat Act will not survive future scrutiny in an appropriate venue," Yost wrote. "But such scrutiny should occur in the first instance in such a venue—an appropriate trial court—and not in this Court in the first instance. The Court’s guidance on the important live issue of appealability is both proper and critical."

But those who were fighting against the ban have asked the court to dismiss the case based on the approval of Issue 1.

"It is beyond question that S.B. 23 does precisely what the Amendment forbids, and accordingly it cannot survive the Amendment’s passage. The Attorney General has publicly conceded that the Amendment would have such an impact," writes Jessie Hill, who represents the abortion providers opposing the six-week ban that was created by Senate Bill 23 in 2019. "Because the Amendment will resolve the underlying litigation and because it presents a significant change in the law governing the dispute between the parties on which the current appeal rests, there is no need for this Court to decide the questions currently before it."

More abortion-related lawsuits coming

Yost noted in an unrelated press conference Thursday that there will likely be more lawsuits because of Issue 1.

“There are other statutes that might be in conflict but are not necessarily in conflict with Issue 1 that nevertheless touch on the topic of abortion," Yost said.

The law on burial or cremation of fetal remains and the ban on telehealth for abortions, both of which took effect in 2021, were being challenged even before Issue 1 was decided. Also on hold is a 2022 law that bans doctors who serve as consulting physicians for abortion providers from working at state-funded universities or hospitals, and allows the Ohio Department of Health to revoke ambulatory surgical licenses, which could have shut down two abortion providers in Southwest Ohio.

But Yost said if there isn’t a court order against an abortion-related law, it should be presumed to be in effect.

Contact Karen at 614-578-6375 or at
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