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SCOTUS ruling on abortion pill could have ripple effect on Ohio

Posted at 7:23 PM, Jun 13, 2024

COLUMBUS, Ohio — The U.S. Supreme Court ruled on Thursday that the abortion pill mifepristone will remain available, but reproductive rights advocates — and opponents — aren't stopping. This ruling could cause a ripple effect in Ohio.

Abortion rights advocates have had a successful year in the state.

"There is this much bigger fight to fully restore federal protections for abortion rights, for access," Kellie Copeland, executive director of Abortion Forward, said.

Issue 1 passed in Nov. 57-43%, and it enshrined reproductive rights into the state constitution. 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.

Pro-Choice Ohio, an integral part of the committee Ohioans United for Reproductive Rights, which got Issue 1 on the ballot, has now rebranded to Abortion Forward.

Copeland, along with the ACLU and Planned Parenthood, have been fighting inside the Ohio Supreme Court to repeal the state's dozens of anti-abortion provisions — but she now gets to celebrate a federal win.

The United States Supreme Court has unanimously decided not to take action in a case to block mifepristone, the widely-used abortion pill.

"It's a relief," the advocate said.

RELATED: Supreme Court allows abortion drug mifepristone to remain widely available in US

This ruling doesn’t have a direct impact on Ohio, Case Western Reserve University law professor Jonathan Entin explained, because all the court did was rule that the plaintiffs didn’t have a basis to sue.

A group of anti-abortion doctors and advocate groups wanted the court to involve itself in challenging the Food and Drug Administration's regulation of mifepristone.

"Plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others," Justice Brett Kavanaugh wrote. "Because plaintiffs do not prescribe or use mifepristone, plaintiffs are unregulated parties who seek to challenge FDA's regulation of others."

People do not have standing to sue "simply because others are allowed to engage in certain activities — at least without the plaintiffs demonstrating how they would be injured by the government’s alleged underregulation of others," he continued.

But there are ways this decision could have a ripple effect in the future.

"Some other challenger who could establish a legal injury might be able to pursue the case," Entin said.

Idaho, Kansas and Missouri all tried to intervene in the SCOTUS case but were not allowed to do so.

"It wouldn't surprise me if one or more of those states now files a separate lawsuit and tries to get around the problems that the Supreme Court identified with the challengers in this case," Entin added.

A new lawsuit could take years, now needing to start back at a federal district court.

This means elections are vitally important to the status of abortion regulation.

If former President Donald Trump wins the presidency, Entin said he could appoint an FDA commissioner who may want to reverse course on mifepristone. However, the FDA would have to go through a formal process to undo its approval, which could also take years. If the FDA did decide to change its policies, it is likely abortion advocates would file their own lawsuit.

End Abortion Ohio’s Austin Beigel said since the court won’t get involved at this point, the quickest way to restrict abortion is through the legislative process.

"When you pass that abolition bill, it will trump all of those other regulations," he said.

In an exclusive interview back in Dec., Beigel provided me with a draft bill his team has been promoting to both statewide and federal lawmakers.

I have been covering abortion in Ohio extensively. Click here to read the latest stories.

Anti-abortion advocates working with Ohio lawmakers on total ban

RELATED: After Ohio Supreme Court dismisses anti-abortion arguments, advocates work to unveil total abortion ban

Their bill criminalizes abortion at any point, meaning a woman who took mifepristone could be charged with homicide.

"I don't like the act of taking it intentionally to kill a human being inside of you," Beigel said. "I think the federal government also has a responsibility to do what's right on this issue."

This is why voting in Nov. is essential to both Beigel and Copeland’s causes. If Congress passes a federal abortion ban, it would supersede Ohio’s constitution.

"There is a scenario under which a nationwide abortion ban could be adopted if the Republicans gain control of both houses of Congress and the White House," Entin said.

Whether the GOP would actually have the votes to pull that off isn’t clear, though — especially since Trump continues to say abortion is a states' rights issue.

“My view is now that we have abortion where everyone wanted it from a legal standpoint, the states will determine by vote or legislation, or perhaps both. And whatever they decide must be the law of the land. In this case, the law of the state,” Trump said in an April 8 video on Truth Social.

Abortion is clearly a losing issue for Republicans, as determined by each state that put abortion on the ballot choosing to protect it.

"It's possible that [Republicans] won't have the votes to push something really restrictive through," Entin said. "But this concern by the pro-choice folks is a reasonable concern."

Still, the U.S. Senate is barely being controlled by the Democrats, with incumbent US Sen. Sherrod Brown (D-OH) facing off against businessman Bernie Moreno, who has said he would support a federal ban.

"I would vote for a national standard that says after 15 weeks we have common sense restrictions that again eliminate elective late-term abortions," Moreno said.

RELATED: Ohio GOP hopefuls for U.S. Senate talk abortion and federal standards with News 5

Right now, there are 49 Republicans, 47 Democrats and four independents. Each of the independents caucuses with the Democrats, so in theory — the breakdown is 51 Democrats and 49 Republicans.

"We need to keep a pro-choice majority in the U.S. Senate to stop the damage that was done by Trump's judicial appointments," Copeland said. "We want to make sure that we have access to abortion, IVF, contraception, whatever the reproductive health care is that we need."

Where reproductive healthcare stands in Ohio

Copeland said abortion rights will once again be on the ballot in Nov., referencing the Brown-Moreno race, as well as Ohio's high court and redistricting proposal.

"We need to defeat people like Bernie Moreno on the federal level, who are hell-bent on passing a national ban on abortion to criminalize people who need reproductive health care," she said.

Next, Ohioans need to pay attention to the Ohio Supreme Court seats.

There is a fight happening in state court. Although Issue 1 passed in Nov., advocates need to repeal the more than 30 abortion restrictions in separate cases.

Right now, Attorney General Dave Yost asked that the Hamilton County Court of Common Pleas throw out a lawsuit that would eliminate the six-week abortion ban, just months after saying that the ban would be void if voters chose to legalize and protect access to abortion. This comes after the Supreme Court dismissed his argument and sent it back to the lower court.

Now, Yost’s team is explaining that although the filing has no explicit mention of this, the AG only wants to fight for "other provisions" — and not the ban itself.

Ohio AG Yost fighting for 'other provisions' in 6-week abortion ban law, maintains ban is unconstitutional

RELATED: Ohio AG Yost fighting for 'other provisions' in 6-week abortion ban law, maintains ban is unconstitutional

Other restrictions include the state's mandatory 24-hour wait period between seeing a physician and getting an abortion.

"Elect a majority to the state Supreme Court that will protect the Ohio Reproductive Freedom amendment, that will enforce it," Copeland said.

And abolish gerrymandering.

"We have to end gerrymandering once and for all because in Ohio, the over 30 restrictions that passed over the last decade and a half all came from this manufactured anti-choice majority that is completely out of step with Ohioans, but somehow is getting elected because they're drawing their own districts to benefit themselves," she added.

Many Ohio GOP politicians want to keep the current way the state draws its maps, as they directly benefit from the process.

Ohio GOP again attempts to go around voters, this time on redistricting and minimum wage

RELATED: Ohio GOP again attempts to go around voters, this time on redistricting and minimum wage

While Copeland is thinking about the ballot box — Beigel is targeting the state and federal lawmakers.

Under his proposed "personhood" bill, abortions would be illegal, and people who get abortions would be prosecuted.

The only lawful abortion would need to meet all of the following conditions: be performed by a licensed physician, be intended to save the life of the mother in danger of death, result in an unintentional rather than intentional death of the "preborn human," and be performed after all other "reasonable options" to save both mother and child have been attempted or are unavailable.

The cells, zygote, embryo, fetus and eventually baby-in-womb would have all the same rights as someone who is already born, meaning all criminal and civil laws would apply.

The bill would also nullify state law that allows a person to direct, advise, encourage or solicit a person to have an abortion.

A similar bill in a previous General Assembly drew concerns from in vitro fertilization patients and doctors, who believed it could outlaw the practice. Other concerns came from people who have IUDs or other forms of birth control that they feel the GOP would consider "spermicides."

Beigel said he would be sure to let me know as soon as the bill gets close to being introduced, as there are numerous sponsors on it in the House.

"If the Ohio legislature does move forward with a personhood bill, it will create a conflict between the language in Issue 1," Beigel said.

He believes it could hold up in court because of an equal protection provision in the US Constitution. His idea would be to use the 14th Amendment to rule that the state constitution is now in violation of said clause.

"I don't think it's a very good argument," Entin said. "I think that there has been a virtually universal understanding among lawyers and judges that when the Constitution talks about people or persons, we're talking about folks who are born."

Beigel knows this will be a legal challenge, but he is also trying to normalize the idea of a total ban. By continuing to introduce it, it may get passed further down the line, he argued.

"Do you think that putting forward a personhood bill would be going against the will of the people?" I asked him back in Dec.

"It would be going against the majority of the voters, yes, I fully acknowledge that," he responded. "Voters can decide to do things that are immoral and evil; That has been a deeply historical part of our country and the majority of people have desired evil at many times in our culture's history."

I re-asked the same question now and got the same response.

"The laws in place and the language in the Ohio constitution is just incorrect, according to truth and reality, it's immoral to be able to take the life of an innocent human being without due process," he said. "We say [the voters] have made an unjust ruling akin to something like slavery where yes — the people desired evil things many times in our country's history."

However, he is running into a roadblock.

"Leadership is just totally silent on the issue of abortion," Beigel said.

Despite his best efforts, the GOP supermajority is allegedly ignoring him.

"They find it to be an inconvenient issue to talk about and they're more concerned about votes than doing what's right," he said, throwing shots at both House Speaker Jason Stephens (R-Kitts Hill) and Senate President Matt Huffman (R-Lima).

Both men have been made aware of the bill and have rejected Beigel and told him "they're not interested in having it right now," the advocate said.

I checked in with both Huffman and Stephens to see where they stand. Neither confirmed — nor denied — Beigel's claims.

Stephens, who on election night, said that "the legislature has multiple paths" that they "will explore to continue to protect innocent life," quickly backtracked the next week and said the paths in question wouldn't be about limiting abortion but rather helping babies.

He then said that the court would decide on abortion laws.

Huffman took a bit longer to evaluate the result, originally saying that "this isn't the end" and is now "the beginning of a revolving door of ballot campaigns to repeal or replace Issue 1." The next week, he denied interest in a ballot proposal for 2024 but floated a 15-week ban on abortion.

His spokesperson, John Fortney, told us in Dec. that "there won't be any effort to try to overturn any part of Issue 1... Most likely what you know will happen, and you can call the speculation, but at some point, somebody will probably try to challenge the legality of part of Issue 1. That won't be coming from the Legislature."

Click here to view the timeline of every major statement or anti-abortion proposal.

RELATED: Abortion access is protected in Ohio. Now what?

Stephens' spokesperson Pat Melton said the speaker has not changed his stance on abortion laws since the fall, but the House is following through on the speaker's dedication to helping children.

"As evidenced by legislation passed during yesterday’s session, the House has been fully committed to supporting and protecting life," Melton said, referencing House Bill 7, bipartisan legislation to support new mothers.

There has been no change or update in Huffman's perspective since the winter, Fortney said.

Follow WEWS statehouse reporter Morgan Trau on Twitter and Facebook.