Judge in decisive Ohio abortion case says AG Yost should apologize for comments

CINCINNATI (WXIX) - The first hearing in a civil case that will decide the future of abortion access in Ohio took place Thursday in Cincinnati.

The ACLU of Ohio and Planned Parenthood of Greater Ohio are among the plaintiffs who filed the case against Ohio Attorney General Dave Yost on Sept. 2 arguing Ohio’s current six-week ban violates the state constitution.

The plaintiffs are requesting a temporary restraining order with a preliminary injunction to follow, arguing the law has caused “an immediate, devastating crisis across the state.” They’re pointedly asking Common Pleas Judge Christian Jenkins to decide on the TRO before Sept. 15, when Dayton’s only abortion clinic will close and Indiana’s recently enacted abortion ban will take effect.

Jenkins could have issued a ruling Thursday but declined. He did not say when he would make his decision.

Jenkins did comment Yost should publicly apologize for doubting the story of a 10-year-old Ohio girl who had to travel to Indiana for an abortion after being raped, according to our media partners at the Enquirer. The girl was reportedly blocked from obtaining an abortion in Ohio because she was six weeks and three days pregnant.

Said Yost, “Every day that goes by the more likely that this is a fabrication. I know the cops and prosecutors in this state. There’s not one of them that wouldn’t be turning over every rock, looking for this guy and they would have charged him,” he said. “I’m not saying it could not have happened. What I’m saying to you is there is not a damn scintilla of evidence. And shame on the Indianapolis paper that ran this thing on a single source who has an obvious axe to grind.”

Days later, Yost was put in the awkward position of confirming the story when he announced charges against the man accused of raping the girl. “We rejoice anytime a child rapist is taken off the streets,” he said.

Ohio Gov. Mike DeWine eventually described the situation as a “tragedy.” Planned Parenthood and the ACLU reference it directly in their complaint.

They also cite multiple physicians who spoke in affidavits about the hardship of traveling to get an abortion, the emotional distress of women forced to carry unwanted pregnancies to term, serious medical conditions that don’t fall under the law’s exceptions and safety concerns for women with pregnancy complications on whom doctors fear to operate due to uncertainty surrounding the exceptions.

More than one physician claimed they’ve had patients threaten suicide. Other patients allegedly said they would try dangerous methods to self-induce abortions, including drinking bleach.

Still more physician accounts are cataloged in a graphic report from the Ohio Capital Journal, though those accounts are not cited in the complaint.

Yost responds there is no constitutional right to abortion in Ohio and that questions of abortion access are rightfully left up to citizens by the democratic process.

He also argued the plaintiffs don’t have the standing to challenge the law because any supposed constitutional right to abortion would belong to individual patients, not their doctors or the plaintiff organizations.

Opposing the TRO, he says the decision by the ACLU and Planned Parenthood to file their initial suit last month directly with the Ohio Supreme Court proves there is no immediate necessity to the law’s enjoinder. The ACLU and Planned Parenthood withdrew from that case, but it remains active on the court’s docket.

Jenkins said Thursday he would have to review his court’s standing in the Hamilton County case because the Ohio Supreme Court case is technically ongoing.

He also interrogated Yost’s position that no one is being harmed by the ban. Yost’s representative, Amanda Narog, argued harm could only be caused if a constitutional right to abortion existed in the first place.

Ohio’s “Heartbeat Law”

The law prevents abortions after the point cardiac activity is detected in a fetus, which generally occurs around six weeks into the pregnancy. Plaintiffs note it can occur as early as five weeks.

The law contains three exceptions: to prevent the death of the mother; where there is a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant mother; and in cases of an ectopic pregnancy.

The middle exception, per the Ohio Revised Code, includes preeclampsia, inevitable abortion, and premature rupture of the membranes. It may include other conditions such as diabetes and multiple sclerosis. It does not include a condition related to the woman’s mental health.

Yost notes that whether the exceptions apply depends on the facts of each case. It’s a point the plaintiffs are relying on to argue that the ad hoc nature of the law creates a climate of uncertainty in which doctors are wary of acting, putting the safety of women at risk.

A violation is a fifth-degree felony punishable by up to a year in prison and a fine of $2,500 in addition to civil penalties. The Ohio medical board may also assess a forfeiture of up to $20,000 for each violation and limit, revoke or suspend a doctor’s medical license.

Statehouse Republicans have introduced a bill that would eliminate abortions with the only exception being to prevent the death of the mother. The bill, introduced just before the summer recess, has not yet been assigned to a committee.

The Heartbeat Law took effect on June 24, hours after the U.S. Supreme Court delivered its decision in Dobbs v. Jackson. That decision overturned Roe v. Wade and Casey v. Planned Parenthood, the landmark precedents governing abortion access in the United States for the last 50 years.

Prior to Dobbs, the 1992 SCOTUS decision in Casey guaranteed a national right to abortions into the 22nd week of pregnancy, or the viability stage at which the fetus can survive outside the womb. Dobbs dispensed with that framework and left all decisions to the states, more than a dozen of which enacted so-called “trigger laws” immediately upon the decision’s publication.

In July, the Biden administration told hospitals that they “must” provide abortion services if the life of the mother is at risk, saying federal law on emergency treatment guidelines preempts state laws in jurisdictions that now ban the procedure without any exceptions following the Supreme Court’s decision to end a constitutional right to abortion.

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