COLUMBUS, Ohio — The state argued Wednesday that the Ohio Supreme Court should restore the controversial six-week abortion ban ahead of the November ballot measure to legalize and protect abortion access.
Benjamin Flowers represented the state and Case Western Reserve University law professor Jessie Hill represented the ACLU of Ohio.
Backtrack
Republican lawmakers passed the six-week abortion ban in 2019, which had no rape or incest exceptions. This law was blocked by a federal judge a few months later.
When Roe fell in 2022, Ohio reinstated the six-week ban. Pro-abortion rights groups sued, and months later, a state judge indefinitely blocked the law from going into place, citing infringement of privacy. This case has been sitting in the high court for half a year now.
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The hearing on Wednesday wasn't actually about whether the six-week ban is constitutional or not.
"The court was addressing two procedural issues that are potentially really significant," Case Western Reserve University law professor Jonathan Entin said.
Entin, a nonpartisan expert in constitutional law, helped break the two questions down.
1. Is the state able to immediately appeal a preliminary injunction, one that blocks a state law?
The state is trying to override the Cincinnati court, which stopped the law from being in place.
"All we're seeking here is to get into court," Flowers said. "This isn't about whether we win, it's about whether we have a right to show up."
Generally, the law doesn't allow appeals in a preliminary decision, such as the Cincinnati courts. However, there are a few exceptions, Entin said.
Flowers argued that the damage that this prohibition is causing makes an exception.
"Every abortion that occurs, that would otherwise be prohibited, interferes irreparably with the state's interest in stopping that procedure from having happened," Flowers argued.
Hill and her team are on the other side, saying it does not meet those standards.
2. Do doctors and clinics that perform abortions have the ability to bring a case against the ban, instead of the patients themselves?
Flowers argued that health care clinics like Planned Parenthood do not have the legal authority to sue the state of Ohio over the abortion law.
"They're not suing on behalf of a particular woman, they're suing on behalf of all, the entire category of women, who may ever seek abortions from them," Flowers said. "What you see here is only transactional, episodic interactions in which the patient meets with the plaintiff, the plaintiff provides the services and they may never see each other again."
Justice Jennifer Brunner pushed back on that argument.
"(Health care clinics) do regular checkups, provide contraceptives, it's a doctor-patient relationship, in some situations there may be one-off situations where there is an abortion, but it's not as you portray it," said Brunner.
Making a person who doesn't want to be pregnant go through an entire lawsuit could take years, thus a child would more than likely be born by that time. That doesn't make sense considering the circumstances, Hill argued.
"An individual who is seeking to end a pregnancy is seeking very time-sensitive health care," Hill argued. "They have a matter of weeks in which to bring that lawsuit, they may be dealing with other financial issues, other health care concerns...The providers have a concrete ongoing stake, personal stake, in the litigation and they are actually the better plaintiffs."
Here are the possible outcomes:
1. The Supreme Court sends it back to the lower courts
If the Court says that there is an appealable order, then the case will go back to the appellate court.
On the other hand, if they say it is not an appealable order, the case will go back to the trial court — which will then continue to address the merits of the six-week ban.
2. The Court chooses not to make a decision until after the November election.
3. The Court throws away the case, reinstating the six-week ban
The justices would be able to dismiss the case by determining it has no standing. This would reinstate the six-week ban. Pre-term-Cleveland physician Mae Winchester said this option would be the worst for Ohioans.
"The 82 days that we spent under the ban last summer was devastating to patients," she said.
This is why the November Issue 1 vote is so important, she said. Ohioans will choose if they have a right to abortion, contraception and fertility treatment.
Anti-abortion advocate Austin Beigel said that he’s voting no because he doesn’t find any type of abortion access constitutional.
"It will continue the plight of the pre-born person in Ohio up until very, very late-term abortions, perhaps," he said.
Some activists on each side argue that if the six-week ban is put back into effect, it may mobilize more people to go out to vote in favor of the constitutional amendment to legalize abortion.
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