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Ohio, Wisconsin Latest in Suits to Save Abortion Right (2)

June 29, 2022, 3:11 PMUpdated: June 29, 2022, 6:33 PM

The fight to preserve abortion access following the US Supreme Court’s decision that it’s not protected by the federal constitution moved into two more states as Ohio providers and Wisconsin Officials asked their courts to weigh in on the issue.

The American Civil Liberties Union, the ACLU of Ohio, Planned Parenthood Federation of America, and the law firm Wilmer Cutler Pickering Hale & Dorr LLP filed an original action in the Ohio Supreme Court Thursday on behalf of abortion providers, arguing that the Ohio Constitution protects a fundamental right to the procedure.

The Ohio suit is similar to cases filed Monday in Idaho and Kentucky, which also allege their state constitutions provide greater protection for abortion rights than the federal constitituion. More such suits are anticipated, as are suits alleging laws are unconstitutional on other grounds, like a Louisiana action arguing that the state’s trigger laws are unconstitutionally vague.

In Wisconsin, Attorney General Josh Kaul (D) sued state lawmakers in state court Wednesday for a declaration that a criminal abortion law dating back to the mid-1800s is unenforceable. The litigation mirrors cases in Texas and Michigan, where state courts have halted the enforcement of decades-old criminal abortion laws.

The Ohio suit asks the state’s top court to reinstate a law allowing abortions up to 22 weeks’ gestation and prohibit state officials from enforcing SB 23, a near-total ban on abortions after about six weeks’ gestation. The ban had been blocked a federal district court, but the court dissolved the injunction within an hour of the US Supreme Court’s ruling last week in Dobbs v. Jackson Women’s Health Organization, the complaint says.

Swift action by Ohio’s top court is needed to prevent violations of a substantive due process right protecting access to abortion found in the Ohio Constitution, the complaint says. Among the rights protected by the state constitution’s due course of law clause are the rights to reproductive autonomy and bodily integrity, according to the filing.

The providers asked the court to immediately halt enforcement of SB 23, declare the measure unconstitutional, direct state officials to abide by the 22-week gestational age limit, and award them litigation costs.

“Abortion is not in the Ohio Constitution,” state Attorney General Dave Yost (R) said about the case. He also criticized the plaintiffs for “filing the wrong action in the wrong court.”

“Races don’t start at the finish line, and lawsuits don’t start in the final court,” Yost said.

19th Century Statute

A Wisconsin law dating back to a time before women had the right to vote is the focus of the attorney general’s suit.

The broad ban makes abortion at any time after conception a felony, with a narrow exception for saving the mother’s life, Kaul’s complaint says.

The law was rarely enforced historically, and not at all after Roe v. Wade, according to his filing in the Wisconsin Circuit Court for Dane County in Madison.

The law directly conflicts with post-Roe Wisconsin laws that criminalize abortion only after the point of viability and contain broader exceptions, the complaint says. It also conflicts with various laws spelling out the parameters under which doctors may legally provide abortions.

The lawmaker defendants have rejected Gov. Tony Evers’ (D) call to invalidate the old statute.

Wisconsin lawmakers didn’t immediately respond to a request for comment.

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 cases are Ohio ex rel. Preterm-Cleveland v. Yost, Ohio, No. 2022-0803, 6/29/22; Kaul v. Kapenga, Wis. Cir. Ct., No. unavailable, filed 6/28/22.

(Adds information about other state lawsuits challenging abortion laws in the third and fourth paragraphs. An earlier version of the story corrected Evers' political affiliation.)

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com