COLUMBUS, Ohio — Ohio Supreme Court justices vigorously questioned the state's lawyer Wednesday about a legal strategy that Ohio is attempting in hopes of reviving its law banning most abortions except in the earliest weeks of pregnancy.
Before Ohio Solicitor General Benjamin Flowers even finished the first sentence of his argument, justices began peppering him with technical questions that suggested they may be reticent to step in and lift a county judge's order that has been blocking the law since last October.
Flowers was representing Republican Attorney General Dave Yost, whose appeal also asserts Preterm Cleveland and the other Ohio clinics that filed the lawsuit lack the necessary legal standing to sue.
Flowers argued that the state has the right to appeal Hamilton County Common Pleas Judge Christian Jenkins' order if it can show it's suffering “irreparable harm” while the law is on hold. Flowers said each abortion that takes place that would have been prevented under Ohio’s 2019 ban constitutes such harm.
The appeal plays out against the backdrop of a November election in which Ohio residents will vote on an amendment to enshrine a right to abortion in their state constitution, passage of which would likely impact both the suit and the law.
The law, signed by Republican Gov. Mike DeWine in April 2019, prohibits most abortions once cardiac activity can be detected, which can be as early as six weeks into pregnancy, before many women know they’re pregnant. The legal battle over the law comes as a proposed constitutional amendment that would protect abortion access in Ohio will go before voters in November.
“The problem with the First District's ruling ( denying Ohio's request to appeal Jenkins' order) is that, if it’s right, then all 88 (county) common pleas courts can unilaterally, indefinitely suspend operation of state law for as long as it takes to conduct discovery, to hold the trial and issue an injunction,” Flowers told the court.
The appellate court ruled Yost's appeal premature, as the order was merely an interim step that paused enforcement of the law while the lawsuit is carried out.
Preterm's attorney, B. Jessie Hill, argued that the state's decision to appeal the stay at the Ohio Supreme Court defies “long-standing, well-established rules" on such actions.
On the question of legal standing, Hill told the court that the clinics, and their physicians, were the proper parties to bring such a lawsuit — not individual pregnant women who are seeking “time-sensitive health care”.
“They are not in a position to hire an attorney, bring a lawsuit, seek an injunction, and then, even if they were to bring it, they’re not going to remain pregnant for very long,” she said.
Flowers challenged the notion, pointing out that the most celebrated abortion lawsuit in U.S. history, Roe v. Wade, was brought in the name of an individual patient.
But when he suggested that abortion clinics also could not prove the necessary “close relationship” to the category of people covered under the suit, and that their business interests in conducting abortions represent a conflict of interest, Justice Jennifer Brunner pushed back.
“There's the Hippocratic oath, though. I mean the medical profession is a profession," she said. “It's not what you would portray it as, as just some kind of monied factory.”
The Ohio abortion law had been blocked as part of a different legal challenge until the U.S. Supreme Court overturned its landmark Roe v. Wade decision last summer that had legalized abortion nationwide. That ruling left it up to states to decide the matter.
Ohio clinics then brought their challenge to state court, arguing that a similar right to the procedure exists under the Ohio Constitution. Yost had also requested in his Supreme Court appeal that justices rule on the main premise of the case — that the Ohio Constitution protect the right to an abortion — but the court left that question to the lower courts.
Data collected last year by AP VoteCast, a broad survey of the electorate, showed that 59% of Ohio voters believe abortion should generally be legal. Just last month, Ohio voters soundly defeated a measure that GOP lawmakers placed on a special election ballot that would have raised the threshold to pass constitutional amendments to 60% — a proposal seen as a first step to defeating the abortion amendment that will be on the fall ballot.