Ohio’s Six-Week Abortion Ban Review Limited by State’s Top Court

Ohio’s top court granted review in a closely-watched abortion case Tuesday, but dodged the main question of whether the state’s constitution protects a right to the procedure.

The Ohio Supreme Court instead will consider whether abortion providers have third-party standing to challenge state abortion restrictions on behalf of their patients—a question the Kentucky Supreme Court recently answered in the negative.

A “no” from Ohio’s top court will make it far more difficult for abortion advocates to fight this and future laws in the state because a patient’s first-party claim could be deemed moot by the time they get through the litigation process. Limiting the question in this manner thus gives Ohio’s justices the ability to end the challenge without addressing the core issue.

The court also will consider whether the state can immediately appeal a trial court order that blocked its so-called “heartbeat” ban while the providers’ case proceeds. The term “heartbeat” refers to a time when a heartbeat can be detected, which is at about six weeks gestation, according to abortion opponents. Providers say the term is misleading and no heartbeat is detectable at that early stage.

An intermediate appellate court dismissed the state’s earlier appeal, saying it had no jurisdiction to review the interim, nonfinal decision of a trial court. Hamilton County Common Pleas Judge Christian A. Jenkins had paused the law’s enforcement to preserve the status quo pending an outcome on the merits.

The Ohio litigation is part of a litigation trend begun after the US Supreme Court struck down a federal constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization. Abortion advocates took their case to the states, arguing that various state constitutions protected abortion rights. So far, the South Carolina Supreme Court accepted that claim, the Idaho Supreme Court rejected it, and the Kentucky Supreme Court avoided answering the question.

The Georgia Supreme Court will hear oral arguments later in March on whether an abortion ban there is legal.

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

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, appeal accepted 3/14/23.