Appeal of Six-Week Abortion Ban Injunction Bounced by Ohio Court

Abortions after the sixth week of pregnancy are legal in Ohio for now, after a state appeals court refused to overturn an order precluding the state’s enforcement of a “heartbeat” ban while its constitutionality is being litigated.

Ohio’s appeals courts have very limited jurisdiction to review interim, or nonfinal, decisions, the Ohio Court of Appeals, First District, said Friday. And this case, where a trial judge paused the law’s enforcement to preserve the status quo pending an outcome on the merits, didn’t meet that standard, it said in dismissing the appeal.

The six-week ban requires physicians to perform an ultrasound examination on a pregnant person and imposes criminal penalties on professionals who perform abortions despite detecting cardiac activity. A doctor may perform a post six-week abortion to save a pregnant person’s life or prevent substantial impairment.

The law has an up-and-down enforcement history. A federal trial court blocked it in July 2019 based on then-prevailing US Supreme Court precedent. It vacated the injunction after the top court reversed that precedent in Dobbs v. Jackson Women’s Health Organization.

Ohio began enforcing SB 23, but abortion providers—Preterm-Cleveland, a coalition of Planned Parenthood affiliates, and a doctor—asked the Ohio Supreme Court to prevent further enforcement.

The providers dismissed that action in September, and instead filed the current lawsuit in the Hamilton County Court of Common Pleas. The trial judge entered a preliminary injunction in October, prompting the state’s appeal.

Not a Merits Ruling

The injunction was provisional in nature, meaning that it wasn’t intended to be the final word in the case, the appeals court said. Such an order is appealable only if it effectively prevents a judgment for the appealing party or prevents that party from obtaining a meaningful or effective remedy, it said.

The injunction doesn’t prevent Ohio from obtaining a remedy—it can still appeal a permanent injunction if the trial court decides after hearing evidence that SB 23 violates Ohio’s Constitution, the appeals court said.

Additionally, Ohio courts generally don’t allow appeals from orders meant to preserve the status quo, Presiding Judge Pierre H. Bergeron said in the court’s opinion.

The court didn’t take a stand on the merits. It sent the case back to the trial court.

Judges Candace C. Crouse and Robert C. Winkler joined

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

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

The case is Preterm Cleveland v. Yost, Ohio Ct. App., 1st Dist., No. C-220504, 12/16/22.