COLUMBUS, Ohio — An Ohio appellate court decided that while the state's six-week abortion ban should remain blocked, other provisions need to be reevaluated by a county judge. This ruling, however, wouldn't change access to care at this time.
Reproductive rights advocates have been in and out of court for the past several years, fighting against restrictions to abortion. That doesn't look likely to end anytime soon.
"The fact that our Attorney General is arguing against our Ohio Constitution in court is really something that the brain has a hard time wrapping its head around," abortion rights activist Jaime Miracle said.
Voters overwhelmingly chose to protect access to abortion in 2023. Issue 1 passed 57-43%, enshrining reproductive rights into the state constitution. It states that Ohioans have the right to make their own decisions about abortion, contraception, fertility treatment, miscarriage care and continuing pregnancy. The state is prohibited from interfering with or penalizing someone for exercising this right, as well as penalizing anyone else — including healthcare professionals — from assisting.
Still, Miracle is dealing with a handful of lawsuits, all related to abortion access.
The First District Court of Appeals has just upheld that the state’s six-week ban, one without exceptions for rape or incest, is unconstitutional. But in a partial win for the state’s attorneys, the judges are sending it back down to the trial court — arguing the Hamilton County Court of Common Pleas Judge Christian Jenkins went too far in blocking the majority of the law.
"We want to keep whatever we can keep," Ohio Deputy Solicitor General Stephen Carney said during a hearing.
Carney successfully argued that Jenkins didn’t follow the correct procedure to block other provisions in the law — one which made it a felony to perform an abortion without checking cardiac activity, created an avenue to sue for wrongful death and allowed the state medical board to revoke doctor licenses for abortions after six weeks.
RELATED: Ohio's abortion ban is unconstitutional. Why is the state still fighting for it?
The appeal hinged on severability, which is the ability for provisions to stand on their own even if other aspects of the legislation are found unconstitutional. Carney argued that Jenkins shouldn't have been able to strike down other provisions in S.B. 23, since the ACLU didn't explicitly ask him to, and there wasn't a severability analysis.
"All we're asking is that you follow the rule of law, the normal rules of the road that every plaintiff has to meet, versus creating this radical road map for everyone to strike down a lot of state laws," he said.
The appellate court has returned the case to Jenkins, who will be able to decide on it again.
"This particular appeal is less about abortion and more about civil procedure and the equitable authority of Ohio’s courts," the appellate court wrote.
In the meantime, other major abortion restrictions in this law are already being blocked due to a different, yet overlapping, court case in Columbus. Some are also tied to the direct language of the six-week ban provision. Thus, only minor aspects of the law would be reinstated, such as a provision on record-keeping.
Miracle said that voters clearly decided this issue, but she won't stop fighting until the other dozens of restrictions are overturned.
"All of these restrictions block people from getting the care they need and should be removed because we have laws that ensure that healthcare is safe," Miracle said.
Eventually, the abortion cases will end up in the Ohio Supreme Court, which is why activists say it's important to pay attention to the November election, as two seats are up for grabs.
In December, we reported that Ohio Republicans started passing anti-abortion bills that attempt to get around the state's constitutional amendment protecting reproductive rights, but abortion rights advocates are committed to fighting back:
RELATED: Ohio lawmakers can't stop abortion, but they can make it harder. Here's how
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