Ohio prosecutors disagree in opposing ‘Heartbeat Bill’ after lawsuit filed

Ohio Attorney General Dave Yost is resisting an attempt to block enforcement of the “Heartbeat Bill,” which bans abortion after five or six weeks’ gestation, but not every affected county prosecutor is falling in line with Yost.

The American Civil Liberties Union, the ACLU of Ohio and Planned Parenthood Federation of America filed suit Wednesday in the Ohio Supreme Court on behalf of Ohio’s six abortion clinics and one doctor, seeking an injunction to again block implementation of Senate Bill 23, which outlaws abortion once a fetal heartbeat is detectable.

Those clinics include the Women’s Med Center of Dayton and the Planned Parenthood Southwest Ohio clinic in Cincinnati, and the doctor is Sharon Liner, medical director for the Cincinnati clinic.

Senate Bill 23 became law in 2019 but swiftly blocked by a federal judge. That injunction, however, was lifted June 24 after the U.S. Supreme Court overturned Roe v. Wade.

Yost, state health officials and prosecutors in counties that are home to abortion clinics are named as defendants. That includes prosecutors Joseph Deters in Hamilton County and Mathias Heck in Montgomery County.

The Ohio Supreme Court swiftly ordered the named defendants to file any responses no later than noon Thursday.

Cuyahoga County Prosecutor Michael O’Malley and Franklin County Prosecutor Gary Tyack filed terse responses saying they do not oppose granting a stay on enforcement of SB 23.

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Yost filed a 63-page response, leading off with a section against Roe in general. It further says plaintiffs are asking the Ohio Supreme Court to “travel Roe’s path.”

Those were the only responses posted on the supreme court’s case information page Thursday afternoon, though notice was filed that Montgomery County Assistant Prosecuting Attorney Ward Barrentine will represent Montgomery County Prosecutor Mathias Heck in the case.

“If this Court creates a right to abortion, the state judiciary will face a flood of cases challenging every minute detail of the many laws regulating abortion,” Yost’s filing says, arguing that abortion would become the focus of every Ohio judicial election.

Yost says abortion was illegal under Ohio law for nearly 140 years before Roe, and that – contrary to plaintiffs’ claims – nothing in the state constitution can “reasonably be interpreted as conferring a right to abortion.”

Plaintiffs can and should make their request in lower courts, so the state supreme court lacks original jurisdiction in the case, Yost’s filing says.

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The suit seeks to have SB 23 declared unconstitutional and return to the previous Ohio standard, which banned almost all abortions 22 weeks after the start of the mother’s last menstrual period.

Plaintiffs argue that many women have no physical indicators of pregnancy at six weeks, and varying menstrual patterns make dates of conception uncertain. Banning almost all abortions discriminates against women, particularly against the poor and minorities who receive the majority of abortions and can least afford their denial, the suit says.

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