Hamilton County judge indefinitely blocks Ohio abortion law

Abortions in Ohio will remain legal up to around 22 weeks as the case plays out.
Hamilton County judge indefinitely blocks Ohio abortion law
Published: Oct. 7, 2022 at 4:33 PM EDT
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A copy of the ruling is embedded below.

CINCINNATI (WXIX) - Hamilton County Common Pleas Judge Christian Jenkins on Friday granted a preliminary injunction against Ohio’s six-week abortion ban.

Abortion remains legal in Ohio up to 21 weeks and six days after someone’s last period, close to the viability stage at which the U.S. Supreme Court drew its line in the 1992 case Casey v. Planned Parenthood.

The defendants in the Hamilton County case, including Ohio Attorney General Dave Yost, are prohibited from enforcing the law or from later taking any enforcement action premised on a violation of the law that might occur as the case plays out, however long that might take.

The injunction, considered an extraordinary action that courts don’t grant lightly, cements a restraining order already in effect against Senate Bill 23, the so-called “Heartbeat Law.” Jenkins issued that order last month on a temporary basis pending the outcome of the injunction hearing.

Restraining orders can last a maximum of 14 days in Ohio.

In granting the injunction, Jenkins agreed with the plaintiffs, including Planned Parenthood and the ACLU, that they were likely to succeed based on the merits of the case. He also reasoned Ohioans will suffer irreparable harm if the law is not enjoined.

It’s unclear whether the defendants can appeal. Injunctions generally cannot be appealed in Ohio because they are not considered final orders of a court.

The Ohio Revised Code, however, spells out exceptions, including orders that affect “a substantial right in an action that in effect determines the action and prevents a judgment.”

The plaintiffs say they will now work to secure a permanent injunction against the law.

The next hearing is scheduled for Dec. 14.

Said a spokesperson for the Ohio Attorney General’s Office, “We will wait and review the judge’s actual written order and consult with the Governor’s administration as far next steps.”

Iris Harvey, CEO and president of Planned Parenthood of Greater Ohio, and Kersha Deibel, CEO of Planned Parenthood of Southwest Ohio, issued the following joint statement:

“Today we will celebrate this win in the battle for bodily autonomy and health care for all, but our work is far from over. We’re fighting for an Ohio where abortion access does not depend on your zip code or income, and we will always stand with the patients who turn to Planned Parenthood health centers for essential abortion care. While this is a vitally important first step, it is up to us to push for bold solutions to ensure a future where reproductive freedom is a reality for all.”

PREVIOUSLY | Judge grants restraining order against Ohio’s six-week abortion ban

Jenkins wrote in the restraining order, “The record is replete with evidence of women who have suffered and whose health has been placed in jeopardy as a result of S.B. 23. [...]S.B. 23 clearly discriminates against pregnant women and places an enormous burden on them to secure safe and effective health care such that it violates Ohio’s Equal Protection and Benefit Clause and is therefore unconstitutional.”

Ohio Senior Assistant Attorney General Amanda Narog is representing the defendants in the case.

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

She also argued no one could be harmed by Ohio’s law because harm could only exist if a constitutional right to abortion also existed.

But there is no constitutional right to abortion in Ohio, Narog said, and questions of abortion access are rightfully left up to citizens by the democratic process.

Jenkins rejected those arguments in the restraining order. He noted the plaintiffs and doctors face the threat of criminal penalties, loss of their medical licenses, civil forfeiture and civil litigation for violations of the law.

On the issue of constitutionality, Jenkins relied on the 2011 Health Care Freedom Amendment to the Ohio constitution, passed by public referendum, which the defendants acknowledged was passed “to provide a legal basis for Ohio and Ohioans to undermine or avoid the federal Affordable Care Act[...]” Jenkins found in that amendment “an express constitutional acknowledgement of the fundamental nature of the right to freedom and privacy in health care decision making.”

On the issue of harm, Jenkins drew on the plaintiffs’ complaint in which they cite affidavits from doctors across the state.

The doctors spoke 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.

A physician with Planned Parenthood in Cincinnati related the story of a 25-year-old who became pregnant, preventing her from getting the chemotherapy she needed for recurrent cancer. She found out she was pregnant at eight weeks, too late to seek an abortion under the law. Her medical provider was unwilling to provide documentation to support an exception to the law, forcing the woman to travel out-of-state.

Other alleged examples, per the affidavits: A 16-year-old who was sexually assaulted by a family member and became pregnant who had to travel to Indiana for an abortion; and the minor victim of sexual assault who had to wait three weeks for an appointment for an abortion in Michigan because S.B. 23 prevented her from receiving care in Ohio.

The plaintiffs also cited the case 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.

Yost initially cast doubt on the girl’s story before recanting. Ohio Gov. Mike DeWine described the situation as a “tragedy.”

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

SB23 prevents abortions after the point cardiac activity is detected in a fetus, which generally occurs around six weeks into the pregnancy. The 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.

Jenkins in the restraining order wrote about the law’s chilling effect on doctors.

“Should the physician’s medical judgment of ‘substantial risk’ or ‘irreversible impairment’ later be second guessed, he or she may be subject to prosecution for a fifth-degree felony (punishable by up to one year in prison), loss of licensure, civil forfeiture and civil liability,” he wrote. “Thus, S.B. 23 potentially criminalizes rather than merely regulates the practice of medicine such that it should come as no surprise to anyone that many or most physicians are unwilling to perform abortions after six weeks even where an exception should apply.”

The Heartbeat Law took effect on June 24, hours after US 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.

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