Ohio appeals court sends lawsuit related to abortion ban back to trial court
An Ohio appeals court has rejected efforts to completely undo the state law that includes Ohio’s six-week abortion ban, but left untouched the ruling that struck down the ban itself following voter passage of a constitutional amendment protecting reproductive rights.
In a recent ruling from the Ohio First District Court of Appeals, a lawsuit over the 2019 Ohio Senate Bill 23 law, which created the state’s near-total abortion ban with no exceptions for rape or incest among other provisions, was sent back to a trial court.
The trial court had previously rejected both the law’s abortion ban after six weeks’ gestation and the other provisions related to abortion care that were passed along with it.
The appellate court judges said the unconstitutionality of the abortion ban was not in dispute during the appeal.
Instead, the appeal focused on provisions such as those that required physicians to check for a fetal or embryonic cardiac activity before conducting an abortion, and record-keeping requirements.
The First District said the appeal was “less about abortion, and more about civil procedure and the equitable authority of Ohio’s courts.”
The case stemmed from a lawsuit in the Hamilton County Court of Common Pleas, where women’s health clinics and the ACLU of Ohio sued the state.
The law had been entangled in court battles since it was signed into law by Gov. Mike DeWine in 2019, first being put on hold while Roe vs. Wade was still in place, and then being put into active law for several months in 2022 after the U.S. Supreme Court overturned Roe vs. Wade.
Activists then sued and the law was blocked again by the Hamilton County court. The lawsuit against the law was bolstered after 57% of Ohio voters in 2023 passed a reproductive rights amendment to the Ohio Constitution.
In October 2024, Hamilton County Judge Christian Jenkins permanently overturned the six-week abortion ban and the provisions that went with S.B. 23, citing the constitutional amendment as one of the reasons for striking down the law.
“For even after a majority of Ohio’s voters … presumably both women and men – approved an amendment to the Ohio Constitution protecting the right to pre-viability abortion on Oct. 8, 2023, the (Ohio) Attorney General urges this court to leave ‘untouched’ all but one provision of the so-called ‘Heartbeat Act’ clearly rejected by Ohio voters,” Jenkins wrote in his 2024 decision.
Ohio Attorney General Dave Yost’s office decided not to fight the rejection of the six-week abortion ban itself, but instead has argued to the appeals court that not all of S.B. 23 should be declared unconstitutional, and some of the provisions in the bill even existed before being added to the law, so some of the law should be allowed to remain intact.
They also argued that the challengers of the law never presented an argument that provisions other than the abortion ban were unconstitutional.
Senate Bill 23 included a “severability” clause, which is a legal concept that allows parts of legislation to continue, even if other parts of the law have been struck down by a court or removed.
As the appellate court put it, severability involves interpreting the law in a way that asks, “what should the court understand the law to be, given that the unconstitutional provision cannot be enforced?”
It is that severability clause that was the main argument by the state in oral arguments to the First District Court of Appeals last September.
Ohio Deputy Solicitor General Stephen Carney said striking down the six-week abortion ban “did not create a super abortion exception” applying to all other parts of the law, and upholding the trial court decision would impact every other law, regardless of subject, passed in the state.
An attorney for the health clinics and abortion rights advocates said the provisions shouldn’t be allowed, because their role was to enforce and uphold the abortion ban that had been struck down.
“Those don’t just stand on their own; they have no meaning without the rest of the ban in place,” said attorney Cassie Mitchell in September.
The appellate court agreed with the state that the lower court should not have ruled that the provisions outside of the ban should be struck down. The judges said the other provisions “are presumptively constitutional.”
“The allegations in (the lawsuit challenger’s) complaint centered around the harm plaintiffs and others would suffer under (the six-week abortion) ban, but not under the disputed provisions,” the court wrote in its decision.
The attorney general’s office was “pleased to see the appeals court agree with what we said all along – it is important for courts and parties to follow procedural rules.”
“Here, proper procedure was not followed, so the appeals court ordered a do-over in the trial court,” a spokesperson for Yost stated.
The clinics and pro-abortion advocates in the case said they were glad to see the court keep the six-week abortion ban under wraps.
“Ohioans have unequivocally rejected politicians’ attempts to ban abortion, and the ruling is a step in the right direction to continue protecting the right for all people in our state to make choices over their own personal medical decisions,” according to a joint statement. “Abortion remains legal in Ohio up to 21 weeks (and) six days of pregnancy.”
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