Updated September 15, 2022, 6:44 AM ET
A Hamilton County judge has issued a 14-day pause on Ohio's six-week abortion ban, commonly referred to as the "heartbeat law." Senate Bill 23 bans abortion at the point fetal cardiac activity can be detected.
Hamilton Countu Common Pleas Court Judge Christian Jenkins issued a temporary restraining order against Ohio's law Wednesday afternoon. In his decision, he writes S.B. 23 does not violate the U.S. Constitution as interpreted in the recent Dobbs decision, but it may violate the Ohio Constitution.
"Ohio’s 10th District Court of Appeals expressly recognized in the abortion context that 'the Ohio Constitution confers greater rights than are conferred by the United States Constitution,' " he writes.
Jenkins said the measure denies "equal protection of the law with respect to the fundamental right to privacy, procreation, bodily integrity and freedom of choice" to women and only women, access to a well-established, safe and potentially life-saving health care option.
The judge said as far as he can tell, no other court had addressed the issue, until now. The restraining order will last 14 days and prohibits penalizing anyone retroactively after the order expires. That means, currently, abortion procedures are legal in Ohio up to 20 weeks of pregnancy.
After the hearing last week, one of the lawyers for the providers, Case Western Reserve University law professor Jessie Hill, pointed out an amendment added to Ohio’s constitution by voters in 2011 as an anti-Obamacare measure - which she said related to a right to privacy.
“Our equivalent of the federal constitutional language that recognizes the right to privacy is a little bit broader than the federal language," Hill said in a forum sponsored by the League of Women Voters of Greater Cleveland.
Jenkins heard arguments on September 8 after the ACLU of Ohio and six clinics that provide the procedure in the state filed for a restraining order the week before. It's a new legal maneuver by the attorney representing many of the state's clinic.
Freda Levenson, legal director for the ACLU of Ohio, said the organization withdrew its initial case challenging the state's new law from the Ohio Supreme Court, said the plaintiffs seek more "immediate relief" from the ban while the issue of whether abortion is a protected right under the Ohio constitution also plays out in court.
The plaintiffs then filed a new case in Hamilton County to stop the law from going into effect and asked the judge to put the law on hold while the case plays out.
An abortion care facility in Dayton was scheduled to close on Thursday if there was no legal action taken by then. The decision by Jenkins gives the facility at least 14 more days.
The case could end up back before the Ohio Supreme Court on appeals.
Mike Gonidakis, Ohio Right to Life president, defended the constitutionality of Ohio’s new abortion ban.
"By forum shopping, abortion activists temporarily got what they wanted which is the ability to abort children with a beating heart,” Gonidakis said in a statement. “Nowhere in the Ohio Constitution or anywhere in the Ohio Revised Code will any Ohioan find supporting evidence that Ohio's current heartbeat law is anything other than good law which saves lives. We are more than confident that the heartbeat law will go back into effect relatively soon. Further, we can assure pro-life Ohio that in the near future Ohio will become abortion-free, regardless of what this local judge ruled today. We will prevail."
Ohio's law passed in 2019 but didn't go into effect until after the Dobbs decision from the U.S. Supreme Court overturned Roe. Ohio's law has no exceptions for rape or incest, but does allow for exceptions "to prevent the death of the pregnant woman” or “to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman”.
