Ohio urges top court to revive abortion ban ahead of statewide vote

By Brendan Pierson

(Reuters) – Ohio on Wednesday urged the state’s highest court to let a ban on abortion at about six weeks of pregnancy take effect, just weeks before voters in the state will decide whether to enshrine a right to abortion in the state constitution.

While the arguments before the Ohio Supreme Court focused on procedural questions and will not lead to a final ruling in the case, a decision reviving the ban even temporarily could draw attention to abortion rights in the weeks before the November referendum.

Governor Mike DeWine, a Republican, in 2019 signed a law banning abortion after a fetal heartbeat is detected, which is usually around six weeks, before many women know they are pregnant. The law took effect after the U.S. Supreme Court last year overturned its landmark Roe v. Wade ruling that had guaranteed abortion rights nationwide.

Ohio Solicitor General Benjamin Flowers at arguments on Wednesday asked the Supreme Court of Ohio to reverse a preliminary order blocking the law.

“The state sustains irreparable harm, no way to remedy it later, every day its law is enjoined,” Flowers said.

Jessie Hill, a lawyer for abortion providers challenging the law, said that “longstanding, well-established rules” in Ohio bar the state from appealing preliminary orders before final judgment.

A state court judge in Cincinnati last year blocked the law from taking effect while he considered a lawsuit by providers, including Planned Parenthood affiliates, finding that the ban likely violated the existing constitution by restricting the freedom to make healthcare decisions.

A mid-level appeals court refused to hear the state’s appeal of that decision, finding that only final judgments, not preliminary orders, can be appealed.

The Supreme Court of Ohio, which has a 4-3 Republican majority, is now weighing whether the state can appeal, and whether abortion providers can challenge the law on behalf of their patients.

Flowers said Wednesday that abortion providers did not have a close enough relationship with patients to sue on their behalf, meaning that they should never have been allowed to sue in the first place.

Hill countered that providers are in a better position to sue on patients’ behalf because pregnant women often “are not in a situation to hire an attorney, bring a lawsuit, seek an injunction.”

The court did not clearly indicate how it will rule. If the court sides with the state on both issues, it could allow the ban to be enforced for the time being.

Ohioans will vote in November on a referendum that would explicitly add a right to abortion to the state constitution. Voters in August rejected a proposal by abortion opponents that would have required 60% of the vote, rather than a simple majority, to amend the constitution.

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