Ohio’s Supreme Court hears the case that could lead to the return of the state’s six-week abortion ban

By Jo Ingles

On September 28, 2023

COLUMBUS, Ohio (Statehouse News Bureau) — The Ohio Supreme Court heard arguments Wednesday that could determine whether the state’s six-week abortion ban will go into effect.

At issue is if the doctors and providers who challenged the near total abortion ban in a Hamilton County Common Pleas case had the standing and if that court had the authority to issue an injunction stopping what’s commonly known as the Heartbeat Bill.

If the court decides they didn’t have standing or the county court didn’t have the authority, the abortion law could be enforced again, like it was last summer in the days and months following the decision by the U.S. Supreme Court to overturn the landmark Roe v. Wade ruling.

Ohio Solicitor General Benjamin Flowers argued for the state. He said the state had the right to appeal the Hamilton County ruling because the state suffers harm from the law being put on hold.

“We have an interest in vindicating the law. And so all we are seeking here is to get into court. This isn’t about whether we win. It’s about whether we show up,” Flowers said.

Flowers said the doctors and abortion providers who brought the Hamilton County lawsuit challenging the state’s six-week ban don’t have standing. And he said that county court lacks power, under state law, to put the six-week ban on hold. Flowers contended women who were denied abortions are the ones who have a right to sue.

But Jessie Hill, attorney for the American Civil Liberties Union of Ohio argued state law doesn’t allow the state itself to appeal an injunction from a lower court if that case hasn’t been decided which, in the case of the six-week ban, it hasn’t. She said the doctors and providers do have standing in this case and aren’t third parties as the state claims.

“They do have injuries to themselves and causation and redressability so in that sense, they do but they are here with these claims, seeking to raise the rights of their patients,” Hill testified.

Hill noted there have been similar challenges over standing in 21 other states and said those courts have upheld the rights of providers to bring lawsuits. She said Kentucky is the only one that has ruled to the contrary.

The debate itself was over technical questions —not on the constitutionality of the six-week abortion ban itself.

But Ohio Right to Life President Mike Gonidakis said the court’s ruling on this case will be important. “This is the most consequential case before the Ohio Supreme Court in decades,” Gonidakis said.

“Because at the heart of this case is whether a local judge in Cincinnati, Cleveland or Columbus can dictate state laws and policies. And what we cannot have happen, which is a loophole in our system, is for a court judge to issue a preliminary injunction and then drag out a case for 18 months, two years, three years, and the law that the legislature passed and the governor signed never goes into effect,” Gonidakis said.

Gonidakis said the women directly affected by the six-week ban should have been the ones to bring this case forward, not the doctors or abortion clinics. And he said he thinks the Ohio Supreme Court will agree.

Hill said the court’s ruling will be important because “access to abortion in Ohio is absolutely on a razor’s edge.”

“If the court rules against us today on the standing question, the order that has been blocking the six-week (ban) from going into effect could be lifted and likely would be lifted. That would mean the six-week ban would likely go back into effect because of the court’s ruling,” Hill said.

When the court will rule is a question. In November, Ohio voters will decide whether to enshrine abortion rights into the state constitution. And if that happens, the six week ban would be unconstitutional.

Austin Bigel, president of End Abortion Now, whose group wants to completely abolish abortion, said he thinks the six week ban is already unconstitutional, regardless of the court’s ruling.

“The six week ban should be ruled unconstitutional. It does not actually protect human life. It does not recognize the legal case for personhood,” Bigel said.

Gonidakis, whose group doesn’t support personhood or a total abortion ban without any exceptions, said he doesn’t think the court will rule before Ohio voters decide in November whether to enshrine abortion rights into the constitution.

“It’s just a long standing history of the court that they don’t rush decisions, whatever the issue is,” Gonadakis said.

This piece was republished from the WOUB.