Ohio voters just passed abortion protections. Whether they take effect is now up to the courts

Columbus, Ohio — Ohio’s new constitutional projections for access to abortion and other reproductive rights are scheduled to take effect on December 7, a month after voters passed them outright. That prospect seems increasingly uncertain.

Existing abortion-related lawsuits are once again moving through the courts now that voters have decided the issue, raising questions about how and when the amendment will be implemented.

The amendment declared an individual’s right to “make and exercise his own reproductive decisions” and passed with a strong majority of 57%. It was the seventh straight victory in statewide votes for abortion access advocates nationally since the U.S. Supreme Court struck down constitutional protections.

But the amendment did not repeal existing Ohio laws, giving Republican elected officials and anti-abortion groups the opportunity to renew or delay or significantly weaken their efforts to end abortion.

“Much of that hard work of figuring out which state laws conflict with the amendment and which state laws can remain ends up in the courts,” said Laura Hermer, a law professor at the Mitchell Hamline School of Law in St. Paul, Minnesota , which examines access to health care and care in the US: “It’s hard to imagine that the legislature is going to say, ‘Okay, you win. We’re going to repeal the heartbeat ban,’ and so on.”

The state legislature is controlled by Republicans whose leaders opposed the November ballot amendment known as Issue 1. The Ohio Supreme Court is also controlled by Republicans, who have a 4-3 majority, and will hold the final be a judge on constitutional issues. Several Republican judges have taken actions or made statements that have led abortion rights organizations and ethics advocates to question their objectivity on the subject.

Minority Democrats in the Ohio House announced legislation two days after the election aimed at avoiding a piecemeal approach to implementing the amendment. They called, among other things, for a repeal of the state’s ban on most abortions after the fetus’s cardiac activity is detected, which is about six weeks, and a 24-hour waiting period.

“There are more than 30 different restrictions in place,” said state Rep. Beth Liston, a physician and co-author of the Reproductive Care Act. “And I think it’s important that we don’t require citizens to go to court for every restriction, and, frankly, that we don’t let any harm happen in the meantime.”

House Minority Leader Allison Russo was careful not to criticize the Supreme Court, which holds sway over the fate of these laws.

“I hope they will uphold the rule of law and the constitution,” she said.

Chief Justice Sharon Kennedy last week ordered attorneys for the state and a group of abortion clinics to tell the court how they think the measure’s implementation has affected a case involving Ohio’s ban on most abortions once the fetal cardiac activity is detected, which has since been suspended. October 2022.

A day after voters approved the amendment, U.S. District Judge Michael Barrett made a similar request to the parties in a long-running federal lawsuit challenging a series of state restrictions imposed on the activities of abortion providers. They include a requirement that clinics enter into agreements with a nearby hospital for emergency patient transfers, as well as a ban on public hospitals entering into such agreements.

At least three other abortion bills in Ohio are also on hold in the courts.

Passing legislation to bring Ohio law into line with the new constitutional amendment was a non-starter for Republican lawmakers, who largely opposed it and took extraordinary steps to defeat it.

With primaries just months away in their Republican Party-heavy districts, they are facing fierce pressure from anti-abortion groups to go the other way and either pass laws that would block the amendment or supermajority to strip the courts of their power to interpret the amendment. .

“The (Ohio) Constitution specifically says that ruling in out-of-control courts is the job of legislators,” the anti-abortion group Faith2Action argues in a recently released video. “So let’s call on lawmakers to do their job, to use their constitutionally granted right to represent us and prevent pro-abortion judges from striking down Ohio’s laws based on an amendment that doesn’t include even a single Ohio law is called.

The video argues that the “right to life” created in the Ohio Constitution is inalienable and that the U.S. Supreme Court decision overturning Roe v. Wade assigned the abortion issue to “the elected representatives of the people.”

But in his concurring opinion in that ruling, Justice Brett Kavanaugh, an appointee of former President Donald Trump, wrote that constitutional amendments were among the options to determine the future of abortion access.

“Furthermore, the Constitution allows for the creation of new rights – state and federal, statutory and constitutional,” Kavanaugh wrote. “But when it comes to creating new rights, the Constitution directs the people to the various processes of democratic self-government contemplated by the Constitution. the Constitution – state legislation, state constitutional amendments, federal legislation and federal constitutional amendments.”

For now, Ohio House Republican Speaker Jason Stephens has said legislation targeting the power of state courts will not be considered. GOP Senate President Matt Huffman has ruled out lawmakers pushing for an immediate repeal of Issue 1 as once suggested, saying such a thing should not be attempted, at least in 2024.

How Attorney General Dave Yost will proceed will also be closely watched.

In a legal analysis of Issue 1 that the Republican published before the election, Yost said the amendment created a new standard for protecting abortion access that goes “beyond” the law of the land under Roe v. Wade.

“That means many Ohio laws would likely be declared invalid… and other laws could be in varying degrees of jeopardy,” he wrote.

Hermer, the law professor, said the statement is useful for lawyers fighting to pass the constitutional amendment, but such an analysis is not legally binding on Yost.

“He doesn’t necessarily have to resign, but having said that, it’s obviously going to be a little bit more difficult to hold those kinds of positions,” she said.