Abortion Case Pits Ohio Against Doctors Suing to Treat Patients

Access to abortion care in increasingly Republican Ohio may hinge on a technical but important legal issue: the ability for doctors and clinics to sue the state for access on behalf of their patients.

The state Supreme Court is set to hear oral arguments Wednesday in a case in which reproductive rights advocates argue that a law effectively banning abortions after six weeks of pregnancy violates the Ohio Constitution, especially in the wake of a 2011 amendment that spells out the ability for people to make their own healthcare decisions. The state, represented by Attorney General Dave Yost (R), has vociferously opposed that argument in his quest to overturn a preliminary injunction a Cincinnati-based trial judge put into place last year.

The seven-member court, which Republicans control 4-3, isn’t expected to answer that pressing question. Instead, it announced in March that it would sidestep that issue and will consider whether providers have third-party standing to challenge abortion restrictions and whether the state can immediately appeal the injunction. Ohioans continue to have abortion access because the 1st District Court of Appeals declined to touch the judge’s injunction, ruling that it doesn’t have jurisdiction to review a non-final decision.

The third-party standing issue is the one many are watching closely, as it could give the attorney general a chance to preempt future litigation challenging abortion restrictions in the state. While other state courts have ruled on this issue, only the Kentucky Supreme Court has said providers don’t have standing.

“If the Ohio Supreme Court says no third party standing,” said Abigail Moncrieff, associate professor of law and political science at Cleveland State University who is also co-director of the school’s Center for Health Law and Policy, then “it is possible that there would be no way to challenge any abortion restriction in the state of Ohio.”

If that occurs, the court would also have to decide whether to carve out an exception for affected women to sue, as there’s an argument that cases become moot once a woman gives birth or a fetus reaches the point of viability, Moncrieff added. However, “if they’re going to be strict about third-party standing, I see no reason to believe that they would also be strict about mootness,” she said.

B. Jessie Hill, a law professor at Case Western Reserve University who is working with the American Civil Liberties Union of Ohio on the abortion litigation, said that abortion access “is on a razor’s edge right now in Ohio” and that both issues the court took up are important for future abortion litigation.

A spokeswoman for Yost didn’t respond to a request for comment.

Election-Year Considerations

The arguments are set for an especially interesting time for Ohio, sandwiched between two elections influenced by the issue of abortion. In August, voters defeated by 14 points a push by Republicans to make it harder to amend the state constitution. That measure was widely seen as a way to raise the threshold reproductive rights advocates must cross to enshrine abortion in the state constitution, which voters will decide on Nov. 7.

The amendment would go into effect 30 days later if approved. It wasn’t immediately clear how the court’s ruling and a “yes” vote could collide, as the court often takes months to issue opinions in major cases.

Moncrieff said abortion is a “very, very strange” legal topic in many states, including Ohio, because laws usually restrict women from obtaining the procedure and punish doctors for performing it.

Tracy A. Thomas, a law professor at the University of Akron and director of the school’s Constitutional Law Center, was more optimistic that a mootness exception would be found.

“It can’t be the rule of law that nobody would be able to challenge it somehow,” Thomas said.

‘Kind of Messy’

The ruling on third-party standing could have implications beyond abortion litigation, noted Hill, who will argue the case on behalf of the providers and advocates. For example, gun stores have sued agencies over regulations on behalf of their customers, she said.

Thomas said the case may be irrelevant if voters approve the abortion amendment in November, calling the implications more “procedural.”

Moncrieff, however, said she wasn’t sure if the case would go away, as the state still may want the standing question answered.

“I don’t know what’s going to happen. It’s all kind of messy right now,” she said. “This is what we get for trying to alter fundamental laws of the United States.”

The ACLU Foundation of Ohio, Wilmer Cutler Pickering Hale and Dorr LLP, the American Civil Liberties Union, and Planned Parenthood Federation of America represent the providers. The Ohio Attorney General’s Office represents the state defendants.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Preterm-Cleveland v. Yost, Ohio, No. 2023-0004, oral argument 9/27/23.