Ohio attorney general fights for ‘other provisions’ in 6-week abortion ban law, maintains ban is unconstitutional

CINCINNATI — Ohio Attorney General Dave Yost’s office asked the Hamilton County Court of Common Pleas throw out a lawsuit that would eliminate the six-week abortion ban, just months after saying said ban would be void if voters chose to legalize and protect access to abortion.

Now, Yost’s team is explaining that although the filing has no explicit mention of this, the AG only wants to fight against “other provisions” — and not the ban itself.

Senate Bill 23 from 2019 allowed abortions up to six weeks — before most women know they are pregnant. It had no exceptions for rape or incest. It was blocked by a judge a few months later.

When Roe was overturned in 2022, Yost was able to put S.B. 23 back into effect. This was subsequently blocked by the Hamilton County judge.

The AG’s office filed a procedural document Friday that responds to all claims that were made by six-week ban challengers, including Planned Parenthood and the ACLU of Ohio, and indicates arguments the office will make throughout the life of the lawsuit.

The initial challengers of the lawsuit revised their arguments after Issue 1, the November measure that enshrined abortion rights into the Ohio Constitution, passed with the approval of 57% of voters.

The response by the AG’s office is a common legal document that is required as part of the legal process, according to Case Western Reserve University constitutional law professor Jonathan Entin.

“The lawyer’s job is to provide the strongest case with the strongest set of arguments available on behalf of the client’s position,” Entin said. “The attorney general’s client is the state.”

Tracy Thomas, Seiberling Chair of Constitutional Law and director of the University of Akron’s Center for Constitutional Law, said it came as a surprise that the state attorney is continuing the lawsuit fight.

“Given the vote [on Issue 1], given the governor saying ‘we’re going to respect the vote,’ I think what was expected was not keeping this lawsuit going,” Thomas said.

Immediately after the abortion amendment passed, DeWine told the OCJ that he did “certainly accept the results of Issue 1 in Ohio.”

But given the polarizing politics on the issue of abortion rights, Thomas said keeping the lawsuit going, if just to delay a ruling until more legislative decisions on reproductive rights can be made, could be one strategy at play.

“Laws and constitutions are only as good as the courts enforcing them,” she said.

Entin said while the filing was procedural, if Yost hadn’t responded, the case would have been automatically won by the ACLU.

There is legislation still active in the Ohio General Assembly that could take enforcement of the abortion amendment out of the hands of the courts. Though House Speaker Jason Stephens brushed off the idea of that sort of legislation, abill to do just that was referred to the Ohio House Rules and Reference Committee in January.

Part of Yost’s response to the lawsuit acknowledged the amendment’s success in November, and the certification of that amendment on Dec. 7, when it took effect in the state.

Yost also confirmed that he published a legal analysis in Oct. 2023 on Issue 1. That analysis brought up the ban, also referred to by Republicans as the “Heartbeat Act,” and Yost wrote that “some of Ohio’s laws may be defensible, but the Heartbeat Act would not exist if Issue 1 passes.”

“Passage of Issue 1 would invalidate the Heartbeat Act, which restricts abortions (with health and other exceptions) after a fetal heartbeat is detected, which is usually at about six weeks,” the legal analysis stated.

The lawsuit does not spell out specific reasons why the six-week abortion ban should stay in place, more generally saying it should be thrown out “for lack of standing and other reasons, especially as to distinct provisions of the bill that will not affect them, and as to constitutional provisions that are no longer relevant in light of Ohio’s new amendment.”

Yost’s first defense in the filing argues that the lawsuit challengers “seek relief broader than any relief to which plaintiffs would be entitled even if narrower relief were warranted by any of their claims,” which legal experts say is a small indication in the filing that the state attorney wants the court to consider the provisions of S.B. 23 and possibly other laws concerning abortion separately, rather than throwing out the laws as a whole.

Jessie Hill, attorney for the ACLU who is one of the attorneys in the Hamilton County case, said Yost “hasn’t told us what parts he thinks might actually be constitutional.”

While the court filing does not spell out any provisions of state law, a spokesperson for the Ohio Attorney General, Bethany McCorkle, gave three examples: a provision to create a joint legislative committee on adoption, promotion and support, another that creates a foster care and adoption initiatives fund, and a third that prevents the prohibition on the “sale, use, prescription or administration of a drug, device or chemical for contraceptive purposes.”

“The filing is asking the court: this isn’t an all-or-nothing, go through what was in there,” McCorkle told WEWS/OCJ referencing S.B. 23. “Let’s determine what is unconstitutional based on the voters, what they said on Issue 1, and what is not.”

The court filing indicated the AG’s office may add to their response, writing to the court that the state attorney reserves the right “to supplement their answer with additional defenses” as the lawsuit continues.

“Because he doesn’t explicitly say, ‘We’re not trying to keep the six-week abortion ban,’ [Advocates] are saying that you never know what he’s going to do. What is your response?” statehouse reporter Morgan Trau asked.

“No… this is a procedural step in the process,” the spokesperson responded, adding that this filing is just a way to get on the same page to go through each provision of the law. “It’s not a light switch — on and off.”

Despite this, Hill wants to see Yost’s claim in writing.

“I certainly hope that he sticks with his prior position eventually and sees that the six-week ban is unconstitutional,” Hill said.

Still, with the language in Issue 1, Thomas thinks the lawsuit is an uphill battle for the state.

“It’s a pretty long stretch to say with our new reproductive freedom that anything from the six-week ban would stay in place,” Thomas said.

A decision in the case is due in May.

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