Hamilton County judge blocks Ohio’s six-week abortion ban

The full decision is embedded at the end of this story.

CINCINNATI (WXIX) - Ohio’s six-week abortion ban is no longer in effect after Hamilton County Court of Common Pleas Judge Christian Jenkins granted a temporary restraining order in a case challenging the law.

The defendants in the case, including Ohio Attorney General Dave Yost, are prohibited from enforcing the law for the next 14 days (until Sept. 28) or from later taking any enforcement action premised on a violation of the law that might occur during that span.

Abortion is now legal in Ohio up to 22 weeks into a pregnancy, or the viability stage at which the US Supreme Court drew its line in the 1992 case Casey v. Planned Parenthood.

Jenkins wrote in his decision the Ohio law, Senate Bill 23—the so-called “Heartbeat Law”—was causing “irreparable harm” while in effect.

“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,” Jenkins wrote. “[...]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.”

Plaintiffs including Planned Parenthood and the ACLU asked Jenkins to rule on the TRO before Sept. 15, when Dayton’s only abortion clinic is expected to close and Indiana’s abortion ban takes effect. Abortion is already banned in Kentucky.

Jenkins’ decision halts enforcement of the law as the parties argue for and against a preliminary injunction.

The plaintiffs filed the case last week requesting the TRO with an injunction to follow arguing SB23 had caused “an immediate, devastating crisis across the state.”

Yost replied Jenkins should deny the TRO request because the plaintiffs initially filed a mandamus action with the Ohio Supreme Court and only later joined the Hamilton County case, judging it had a greater chance of success. That delayed maneuver, according to Yost, showed a lack of urgency.

“[B]y July 1, the plaintiffs knew that they could not obtain emergency relief from the Heartbeat Act in the mandamus case. Still, they chose to maintain that action rather than dismiss the case and seek emergency relief elsewhere,” Yost wrote. “[...]Any emergency that exists today is an emergency of their own making.”

The Ohio Supreme Court case remained active on the court’s docket when the Hamilton County case was filed on Sept. 2. The Court granted the plaintiffs’ application to dismiss the case on Wednesday.

Jenkins said last week he would have to review his court’s standing in the Hamilton County case because the Ohio Supreme Court case was technically ongoing. He ultimately ruled Wednesday that even if the Ohio Supreme Court case were still ongoing, his court would have jurisdiction to hear and rule on the Hamilton County case.

MORE | Ohio Supreme Court dismisses Planned Parenthood case against ‘Heartbeat Law’

More generally, Yost argued 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.

Jenkins rejected that argument outright, noting the plaintiffs and doctors face the threat if criminal penalties, loss of their medical licenses, civil forfeiture and civil litigation for violations of the law.

Yost also argued 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.

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, Yost’s representative, Amanda Narog argued in last week’s hearing no Ohioan was being harmed by the law because Harm could only exist if a constitutional right to abortion also existed.

Jenkins did not appear to buy that argument during the hearing, and he rejected it in his decision, drawing 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 Jenkins’ ruling: 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 pointedly cite 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 wrote in his ruling 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.

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.

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