CINCINNATI (FOX19) - The state of Ohio is appealing a federal judge’s decision that allows abortions during the coronavirus pandemic despite a ban on non-essential surgeries and medical procedures.
Ohio Attorney General Dave Yost’s office asked the U.S. Sixth Circuit Court of Appeals to pause the order issued Monday by U.S. District Judge Michael Barrett in Cincinnati.
The state also asked Barrett to put a hold on his order while the appeals court considers the decision, but he declined.
Ohio Department of Health Director Dr. Amy Action ordered a stop to all elective surgeries and medical procedures last month to preserve personal protective equipment (PPE) for medical providers and hospital beds.
Yost sent cease and desist letters to three abortion providers across the state, including one in Cincinnati, after the health department received complaints the procedures were continuing.
On Monday, Barrett agreed to impose a temporary restraining order for two weeks.
He said in his ruling a woman’s doctor, not the state, should decide if her abortion was non-essential.
The judge wrote in his decision that “the law is well-settled that women possess a fundamental constitutional right of access to abortions.”
He also decided the state had not proven that performing surgical abortions would result in any beneficial amount of net saving of PPE (personal protective equipment) in Ohio “such at the net saving of PPE outweighs the harm of eliminating abortion.”
The abortion providers said in their motion some patients would be forced to carry pregnancies to term against their will and at risk to their health amidst a health system overburdened by responding to COVID-19,” the filing states.
Ohio is not alone in going through this debate amid the health crisis.
Federal judges also have barred Alabama and Texas from restricting abortions with public health orders.
Earlier this week, a federal appeals court put the Texas decision on hold.
Republican attorneys general in 15 states, including Kentucky, Indiana and West Virginia, have filed “friend of the court” briefs supporting Ohio’s ability to restrict abortion clinics during the coronavirus crisis.
In Ohio, the abortion clinics’ motion was attached to the lawsuit filed against Ohio’s "Heartbeat Bill,” that stopped abortions as early as six weeks gestation.
A federal court judge blocked the “Heartbeat Bill” from taking effect last year.
Ohio’s abortion providers are represented by attorneys from the ACLU, Planned Parenthood Federation of America, the ACLU of Ohio, and the Cincinnati firm Gerhardstein & Branch Co. We requested comment from those parties and will update this story if we hear back.
With coronavirus cases expected to surge soon, the state is clearly not backing down.
There is a statewide a stay-at-home order, and many businesses are closed or operating with most employees working at home.
The order was to expire Monday, but Gov. DeWine on Thursday extended it until May 1.
Acton expects the state will likely peak at 10,000 cases a day between mid-April and mid-May.
She has repeatedly explained her order is not a political decision, it is one that simply seeks to curtail community spread of the highly contagious disease.
“Dr. Acton’s order is designed to save lives, and the same rules apply to everybody," Attorney General Yost said Thursday.
"Elective surgeries are off the table for the moment to preserve equipment needed to combat the spread of a lethal, once-in-a-lifetime pandemic.”
The state’s appeal opens by asking the following question in its “Statement of The Issue”:
“Does the Constitution bar States from requiring abortion providers to delay abortions or alter their methods, without denying anyone the right to an abortion, when doing so is necessary to preserve equipment needed to combat the spread of a lethal, once-in-a-lifetime pandemic?”
The appeal goes on to be even more blunt:
“If this Court declines to stay and reverse the District Court’s ruling, the people working hardest to save Ohioans from COVID-19 will die as a result. That is not an exaggeration. First responders and hospital personnel in Ohio face a critical shortage of “PPEs”—protective equipment needed to keep them from contracting and spreading the virus that causes COVID-19.”
The state’s brief argues that case law provides a woman a right to an abortion, but “that right is not categorical” and can be regulated.
In this case, the benefits outweigh any burdens on a woman seeking an abortion, the state contends.
It notes that Acton’s order requires medically-induced abortions be used when available and delays surgical ones unless that jeopardizes a woman’s ability to have one before the baby can survive outside the womb.
“Doctors across Ohio are complying with this order, making patient-specific decisions regarding whether a surgery is ‘essential,’” the brief reads.
"But the abortion-provider appellees deemed this an inconvenience and sued, claiming the Constitution guarantees them a right to perform surgical abortions whenever they want …”
Right to Life of Greater Cincinnati and other statewide pro-life groups said they shared evidence that abortion facilities were still in operation and called upon the grassroots community to contact Gov. Mike DeWine and Acton.
“We thank Attorney General Yost for enforcing the law and ensuring that Planned Parenthood and their abortion allies are held to the same standard under the State’s Health Order that every other surgical facility is currently,” said Stephanie Ranade Krider, Vice President of Ohio Right to Life.
“Regardless of how many times Planned Parenthood ignores the law and claims that they deserve special treatment under the Health Order- we know better. Abortion is not essential and these facilities’ blatant disregard for human life and safety during this crisis only serves to underline that fact.”