BY SUSAN TEBBEN
The ACLU, Planned Parenthood Federation of America, and the WilmerHale law firm filed a request to make changes to their lawsuit in the Hamilton County Court of Common Pleas, arguing the Ohio Issue 1 amendment passed by 57% of voters should be applied and the state’s six-week abortion ban law should be removed for good.
“The Ohio Constitution now plainly and precisely answers the question before the court – whether the six-week ban is unconstitutional – in the affirmative,” according to a statement released by PPFA, Planned Parenthood of Greater Ohio, Planned Parenthood Southwest Ohio Region, the ACLU’s national and Ohio chapters and other clinics in the state who were party to the lawsuit: Pre-term-Cleveland, Women’s Med Group Professional Corporation, Northeast Ohio Women’s Center and Toledo Women’s Center.
Enforcement of the six-week ban, enacted as Senate Bill 23, has been indefinitely paused since Oct. 2022, when Hamilton County judge Christian Jenkins argued the state constitution “specifically and unambiguously recognized as fundamental the right to liberty … and the right to seek and obtain safety,” despite not specifically mentioning abortion rights at the time.
The new development isn’t a surprising move, since abortion advocacy groups began plans to overturn abortion regulations in the state as early as the day after Issue 1 was approved by 57% of Ohio voters in the November general election.
Constitutional law professor Steven Steinglass predicted legal conflicts that would pit state legislators against the amendment, despite its overwhelming approval from voters. Even though the amendment is effective, he and abortion advocates don’t plan to relax as dozens of abortion restrictions are still on the books in Ohio. Plus, there have already been concerted efforts to undermine the amendment itself.
The proposed amended complaint, which hasn’t been officially accepted by the court but has been filed in the Hamilton County court, says Issue 1 became effective Dec. 7, and “establishes the ‘right to make and carry out one’s own reproductive decisions,’ including the decision to have an abortion.”
The proposed complaint laid out all parts of the new state constitutional, including the language that only allows the state to prohibit abortion “after fetal viability,” though no abortion can be prohibited if a treating physician finds it “necessary to protect the pregnant patient’s life or health.”
Imposing a six-week ban puts the prohibition “well before the point of fetal viability,” the groups argue, and penalizing abortion providers doing so violates the constitutional language in which the state is not allowed to “burden, penalize, prohibit, interfere with or discriminate against” the individual right to abortion or the provider’s ability to assist in exercising that right.
“By banning abortion from the earliest weeks of pregnancy and thus forcing continued pregnancy and childbirth upon countless Ohioans, (the six-week ban) prohibits plaintiffs’ patients from exercising their fundamental rights in violation of the Ohio Constitution’s broad protections for individual liberties under Article 1, Sections 1, 16 and 21,” the complaint states, referring to the Issue 1 amendment.
The groups asked the court to keep the pause in place as they await a permanent injunction, based on the new court filing.
The case is also awaiting a decision from the Ohio Supreme Court, who heard arguments in September on whether or not the ban could stay in place as the lawsuit went forward. Representatives for the state of Ohio argued the pause in enforcement was judicial overreach, and could cause harm to the state as abortions could continue to go forward.
