Clinics ask court to declare Ohio six-week abortion ban unconstitutional after amendment passage

Clinics across Ohio who provide abortion services asked a Hamilton County court to declare Ohio’s six-week abortion ban unconstitutional in light of the Ohio Constitutional amendment protecting reproductive rights passed by 57% of voters in November.

Planned Parenthood clinics in the state, along with Preterm-Cleveland, Women’s Med Group Professional Corporation, the Northeast Ohio Women’s Center and the Toledo Women’s Center pushed for a ruling against the state law because of it’s contradiction with the newest amendment to the Ohio Constitution, which legalized abortion up to the point of viability as determined by a pregnant person’s doctor.

“Plaintiffs are entitled to judgment on the pleadings because (Senate Bill 23, the six-week ban) is unconstitutional as a matter of law,” attorneys wrote on behalf of the clinics.

The filing in the Hamilton County Court of Common Pleas pointed to Ohio Attorney General Dave Yost’s comments in an October 2023 legal analysis in which he said the “Heartbeat Act,” as its supporters called the six-week ban, “would not exist if Issue 1 passes.”

For the purposes of the lawsuit, attorney Jessie Hill said the analysis shows Yost has “publicly conceded that S.B. 23’s six-week ban is unconstitutional,” and thus there are no legal disputes.

Yost, as the chief legal representative for the state, is fighting against the lawsuit, and filed his own request with the court asking that the lawsuit be thrown out.

The abortion ban law with no exceptions for rape or incest was passed by the legislature and signed by Ohio Gov. Mike DeWine in 2019. It has basically spent its life-span in courts, becoming the target of lawsuits almost as soon as it was enacted and temporarily and indefinitely blocked by judges along the way.

It arose once again after the U.S. Supreme Court decision in Dobbs that overturned abortion legalization nationwide. Yost acted in his official capacity to push the federal court holding up the law at the time to release the law under the new legal development. That happened in June 2022, but the law then moved months later to the Hamilton County court where the current block stands.

Last November, things changed after 57% of Ohio voters passed the constitutional amendment in Issue 1, which put abortion rights, along with other reproductive medical decisions, into the Ohio Constitution.

“The Ohio Constitution is clear: there is an express fundamental right to make and carry out one’s own reproductive decisions, including the decision to have an abortion,” states the brief asking Hamilton County to strike down the six-week ban.

The amendment, attorneys argue in the brief, defines fetal viability as well, as “the point in a pregnancy when, in the professional judgment of the pregnant patient’s treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures.”

Critics of the six-week ban have said individuals often don’t know they’re pregnant until after six weeks gestation.

“Because six weeks (after last menstrual period) is indisputably a pre-viability point of pregnancy, S.B. 23 prohibits abortion starting at a time when the embryo is still months away from having the physiological and functional structures necessary for sustained survival apart from the pregnant person’s body,” the court brief states.

The amendment also requires the state to demonstrate “the least restrictive means to advance the individual’s health in accordance with widely accepted and evidence-based standards of care,” which six-week ban challengers say is not possible under the Ohio Senate Bill 23 law.

“As the Ohio Attorney General has conceded that S.B. 23 is invalid under (the abortion amendment of the constitution), he has necessarily also conceded that the state cannot satisfy its burden of showing that S.B. 23 advances patient health using the least restrictive means, as it must in order to survive constitutional scrutiny,” attorneys for the clinics wrote in the brief.

The state previously attempted to get the six-week ban’s block lifted by the Ohio Supreme Court as the case continues in Hamilton County. In December of last year, however, a bipartisan majority of the state’s highest court dismissed the appeal due to a “change in law.”

This story was originally published in the Ohio Capital Journal