Battle over abortion regulations continues in Ohio, lawsuits stretch into 2025

The battle to change Ohio laws surrounding abortion regulations is still broiling, even as a new presidency brings concerns on a federal level as to where abortion rights may stand in the coming years.

With the approval of the reproductive rights constitutional amendment in 2023 by 57 percent of Ohio voters, attorneys set their sights (or adjusted their arguments) on the individual laws in the state concerning abortion, like the six-week abortion ban, the 24-hour waiting period, the mandatory two-visit minimum patients must meet before having the procedure, and an attempt to stop telemedicine visits as a means of receiving medication abortion treatment.

Ohio’s six-week abortion ban was struck down by Hamilton County Judge Christian Jenkins, who said the constitution now barred such regulations. Attorney General Dave Yost disagreed, and is currently appealing the decision to the First District Court of Appeals.

Another Hamilton County judge, Allison Hatheway, ruled in September that clinics could temporarily prescribe the abortion drug mifepristone through virtual appointments and sent it to pharmacies or medication services.

Franklin County Judge David C. Young temporarily paused the 24-hour waiting period and the two-visit minimum in August, as litigation continues in that case. Like Jenkins, Young cited the new constitutional amendment in his ruling. He also denied a motion from the state to dismiss the case all together.

The case is set to continue well into the new year, with no trial date set, but procedural deadlines set as far out as August 2025.

There’s another case not set to see resolution until late into next year, one that deals with a wonky issue regarding physicians and hospitals who are allowed to work with abortion facilities through transfer agreements.

The transfer agreements have been a problem particularly for clinics who conduct abortions, but are also causing issues for facilities who are trying to help patients through the birthing process as well.

The agreements work as an understanding between hospitals, physicians, and other facilities if an emergency situation, such as birth complications, arises.

“They’re basically a contract between a hospital or a health care facility of some kind, saying if there’s an emergency the facility will transfer to this hospital,” said Jessie Hill, a law professor at Case Western Reserve University, and a cooperating attorney at the ACLU of Ohio who has led much of the abortion rights litigation that has happened before and since the amendment’s passage.

The hospitals have the discretion to agree to a transfer agreement or not, for whatever reason hospitals deem reasonable.

Cole Ramsey, of the Ohio Birth Center, said the brand new facility aiming to help pregnant patients with everything from pre-natal care to postpartum education, is wondering whether they’ll be able to stay open because of state delays in licensure, and the denial by the state of a request for a waiver of transfer agreements.

Ramsey told a meeting of Ohio’s legislative Black Maternal Health Caucus that the OBC reached out to four different hospitals in the state, and while some had initially agreed, they ultimately declined to sign a transfer agreement. Others said the state process for transfer agreements “takes a while,” and one hospital said physicians threatened to leave their jobs if a transfer agreement was signed with the OBC, but gave no reason why.

“The transfer agreement (requirement) creates a major barrier to opening and maintaining a birth center in Ohio,” Ramsey said.

While there may have originally been good intentions when transfer agreements were first implemented, “they’ve turned into bureaucratic obstacles,” according to Hill.

“They don’t serve any real purpose,” Hill said. “In an emergency, a transfer agreement’s not going to necessarily determine where a patient goes, and they don’t have a huge impact if you were go to an ER.”

A federal law from the 1980s called the Emergency Medical Treatment and Labor Act (EMTALA) requires emergency rooms across the country to accept emergency patients regardless of the ability to pay.

EMTALA came into the national spotlight last year when an Idaho law attempted to prohibit emergency abortion care. The U.S. Supreme Court temporarily allowed the emergency care, ruling that the federal law pre-empted the Idaho law in a decision released in June.

But for Ramsey and the team at OBC, the ability to give patients the full plan in their pregnancy, even if complications should arise, is vital to the overall experience.

“It is so necessary and important for patient safety to have transfer plans in place,” Ramsey said.

Transfer agreements in Ohio have seen recent legislative changes, which are among the reasons abortion rights groups sued to get a court to reconsider the laws.

In March 2022, the Ohio legislature passed Senate Bill 157, which was originally written to require reports of “failed abortions” in which a fetus is “born alive,” and expand the crime of “abortion manslaughter” to include a physician’s “failure to take measures to preserve the health of a child born alive after abortion.”

But the bill was amended to include a change to transfer agreements, which barred physicians who teach at or are compensated by “a medical school affiliated with a state university or college, a state hospital or other public institution” from participating in agreements with ambulatory surgical facilities. Abortion clinics can be considered ambulatory surgical facilities if they conduct surgical abortions.

Ohio law also requires hospitals with transfer agreements be within 30 miles of the facility.

The lawsuit regarding transfer agreements is scheduled for trial on Oct. 7, 2025, with a deadline for documents in the case set for early March.

Susan Tebben is an award-winning journalist with a decade of experience covering Ohio news, including courts and crime, Appalachian social issues, government, education, diversity and culture. She has worked for The Newark Advocate, The Glasgow (KY) Daily Times, The Athens Messenger, and WOUB Public Media. She has also had work featured on National Public Radio.

Ohio Capital Journal is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.

Publisher's note: A free press is critical to having well-informed voters and citizens. While some news organizations opt for paid websites or costly paywalls, The Highland County Press has maintained a free newspaper and website for the last 25 years for our community. If you would like to contribute to this service, it would be greatly appreciated. Donations may be made to: The Highland County Press, P.O. Box 849, Hillsboro, Ohio 45133. Please include "for website" on the memo line.