Ohioans who support abortion rights claimed a major victory in 2023 with the passage of an amendment to the state constitution guaranteeing reproductive rights, including the right to an abortion. But the Ohio Supreme Court, which underwent a significant change in the last election, will have the final say on how those rights will be interpreted.
Voters passed Issue 1 with 57% of the vote. A year and a half later, abortion rights advocates say their work is just beginning.
"The fight is definitely not over," said Jessie Hill, a law professor at Case Western Reserve University and a volunteer attorney for the American Civil Liberties Union of Ohio. She helped write Issue 1. "I think it's something that is not as well known to members of the public who maybe aren't aware of what the landscape of abortion regulation looks like in Ohio."
The Ohio Revised Code has 96 laws regulating abortion. The ACLU has challenged the constitutionality of several of them, arguing they violate the amendment.
"The language is written very broadly. It lays out a very clear legal test for courts to apply. The trial courts who have addressed it have found it very understandable and very protective," said Hill.
Since Issue 1’s passage, Hamilton County Common Pleas Court Judge Christian A. Jenkins struck down the most restrictive law, Senate Bill 23, the so-called “Heartbeat Law” of 2019 that banned abortion after six weeks of pregnancy. The Ohio constitution allows abortion up to fetal viability, which it defines as “the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis.”
While the state agreed the ban was no longer enforceable, it has appealed, arguing other elements of S.B. 23 should remain.
County judges have also issued preliminary injunctions that suspended other laws, like the mandatory 24-hour waiting period and a requirement for doctors to provide patients with state-mandated information on the stages of pregnancy, the health impacts of abortion and alternatives like adoption.
The ACLU argued these provisions violate the amendment, which says the state cannot “directly or indirectly burden, penalize, prohibit, interfere with, or discriminate against” abortion seekers and providers.
Mike Gonidakis, president of Ohio Right to Life, believes the judges have overreached.
"Voters in Ohio didn't vote to strike those down," he said.
Gonidakis is looking forward to these cases coming before the state's highest court.
"We just elected three Ohio pro-life supreme court justices and the current makeup of the court, which is seven members, six of them are endorsed by Ohio Right to Life," he said.
Gonidakis said he doesn't know what the court's 6-1 Republican majority will do.
Former Ohio Supreme Court Justice and Democrat Michael Donnelly, who lost his re-election bid in November, said it's "dangerous" to expect a jurist to make decisions based on their party affiliation or personal beliefs.
"Diversity of thought is a good thing for the judiciary. But if you're advocating for a judge with a certain mindset, simply because you believe that that judge will carry out a decision, no matter how far it flies in the face of the language of the law, that's deeply concerning. Because that's what's called legislating from the bench," he said.
During five of his six years on the Ohio Supreme Court, Republicans had a 4-3 majority over Democrats. Donnelly kept records of each justice's vote during his time on the bench. He said the court reached unanimous decisions 63% of the time, and many 4-3 decisions were not along party lines.
"But the ones that do fall down party lines, unfortunately, those are high-profile cases involving reproductive rights, redistricting cases. And people unfortunately perceive those decisions as indicating that the court is just another political body," Donnelly said.
Donnelly said Ohio should return to non-partisan supreme court races, saying partisan politics have no place in an independent judicial system. In 2021, Ohio Gov. Mike DeWine, a Republican, signed a law that allowed candidates' party affiliations on general election ballots for the Ohio Supreme Court and the state's appellate court districts. Republican supporters of the legislation argued it provided more information to voters, adding that Ohio's partisan primary races for judicial candidates already made the campaigns partisan in nature.
The Ohio Supreme Court could take up the S.B. 23 case before the end of the year. Ohio Right to Life’s Mike Gonidakis said he has a “100% degree of certainty” that its decision will differ from the lower court’s. Attorney Jessie Hill said that if jurists base their decisions on the reproductive rights amendment’s text, the ACLU should win all its cases.
