Expect more challenges to Ohio’s abortion laws from the new constitutional amendment

By Jo Ingles

On April 4, 2024

COLUMBUS, Ohio (Statehouse News Bureau) — News of a lawsuit challenging some state abortion laws came down last Friday. And supporters of abortion rights suggest it won’t be the last challenge coming from the passage of Issue 1 last fall.

The ACLU of Ohio filed the suit on behalf of abortion providers, challenging the 24-hour waiting period and its required ultrasound and meeting with a doctor.

ACLU of Ohio Legal Director Freda Levenson said provisions of the 24-hour waiting period are unconstitutional since Ohio voters approved Issue 1, the constitutional amendment that guarantees abortion access and reproductive rights.

“We are trying to do something historic here,” Levenson said.

Levenson explained the suit challenges the requirement that providers perform an ultrasound and provide patients seeking abortion with information that Levenson said is unnecessary and misleading. She said the amendment prevents the state from putting those barriers between a woman and her right to an abortion.

“And I think you could also see us amending complaints in other pending challenges to abortion restrictions to invoke the new amendment,” Levenson said.

Republican state leaders have not changed or repealed any abortion restrictions since the November vote. They have instead said those laws need to be addressed by courts.

Aaron Baer, president of the influential Center for Christian Virtue, said the restrictions being targeted in this lawsuit are commonsense regulations that protect women. And he said Ohioans who voted for Issue 1 to ensure abortion rights may not have realized these laws would be affected.

“Ohio voters are going to see the abortion amendment was a lot more than they bargained for,” Baer said. “I think for a lot of voters, they are going to have some buyer’s remorse.”

Republican Attorney General Dave Yost had campaigned against Issue 1, and his office did a legal analysis saying some laws would fall if it passed, including the ban on abortion after six weeks, which he said “would not exist if Issue 1 passes.”

The analysis said provisions required with the 24-hour waiting period law “would certainly be challenged under Issue 1, and the Court determination would likely turn on whether such provisions served to ‘burden, penalize, prohibit, interfere with, or discriminate.’ It is possible to foresee a court decision that said a waiting period was a ‘burden,‘ but that informed consent is not. If so, neither provision would be likely to survive the ‘exclusive scrutiny’ test.“

Bethany McCorkle, a spokesperson for Yost, said in a written statement that the new amendment doesn’t clearly outlaw informed consent laws.

“The state respects the will of the people regarding the six-week abortion ban, but the state likewise is obligated to protect provisions in SB23 (the six week ban), as passed by the General Assembly and signed by the governor, that the constitutional amendment does not address, thus preventing overreach,” McCorkle said in a written statement.

In February, Yost argued in a brief filed in the Ohio Supreme Court over the six-week ban that that Issue 1 makes it unconstitutional, but said the court should continue to hear the case because there are other non-abortion related issues involved. In December the court sent the case back to Hamilton County. Yost has asked the judge there to dismiss it, but his 16-page filing didn’t detail what parts of the six-week ban could still be constitutional.

The abortion issue is front and center in the upcoming Ohio Supreme Court races in which three seats are up for grabs. Republicans who already hold a 4-3 majority on the court hope Justice Joe Deters can defeat Democratic Justice Melody Stewart. He’s running against her instead of seeking re-election to the seat he was appointed to so he can get a full term on the bench. Democrats are hoping to get Stewart and fellow incumbent Justice Michael Donnelly re-elected as well as win Deters’ current seat.

This piece was republished from WOUB.