The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
Ohio Attorney General Dave Yost will appeal a Hamilton County court’s decision to strike down the state’s six-week abortion ban with no exceptions for rape or incest that was put into effect for several months after Roe v. Wade was overturned in 2022.
Yost, along with Ohio Department of Health director Bruce Vanderhoff and the State Medical Board of Ohio’s Kim Rothermel and Bruce Saferin, were listed in the notice of appeal filed this week in the 1st District Court of Appeals. The 1st District is the appellate court that oversees Hamilton County.
The state attorney general is appealing Hamilton County Judge Christian Jenkins’ decision in October which struck down a 2019 law that banned abortions after six weeks gestation, a time at which supporters of the law said fetal cardiac activity could be detected.
The law was blocked in court almost from the moment it was enacted, with abortion rights advocates suing to stop enforcement of the law.
When the U.S. Supreme Court overturned Roe v. Wade in the summer of 2022, Yost asked a federal court the same day for the law to be released from its injunction.
The law then went into effect for several months, but was then tied up in court again after abortion rights advocates like Preterm Cleveland and Planned Parenthood Southwest Ohio Region askedthe Ohio Supreme Court, and then a Hamilton County court, to stop the law once again.
When 57% of Ohio voters approved a reproductive rights constitutional amendment in November 2023, attorneys for the abortions rights groups sought to get the law permanently overturned, with the rights enshrined in the new amendment.
During the case, after the amendment was passed by voters, Yost argued that the law shouldn’t be thrown out entirely. He argued that some provisions didn’t conflict with the amendment passed by voters and should be kept, such as mandatory waiting periods and multiple appointments required for abortion care.
This past October, Jenkins agreed with the groups, saying the new amendment “now unequivocally protects the right to abortion” and that the law should be permanently overturned “to give meaning to the voice of Ohio’s voters.”
“Unlike the Ohio Attorney General, this court will uphold the Ohio Constitution’s protection of abortion rights,” Jenkins wrote in his decision. “The will of the people of Ohio will be given effect.”
Jenkins used Yost’s own legal analysis of the amendment (written prior to its passage) against him in the ruling. Yost wrote in the analysis that the amendment “would give greater protection to abortion to be free from regulation than at any time in Ohio’s history.”
“Ohio would no longer have the ability to limit abortions at any time before a fetus is viable,” Yost wrote. “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.”
Jessie Hill, cooperating attorney for the ACLU of Ohio, who represented abortion rights groups in the case, said they intend to “keep fighting to ensure that the amendment is enforced, and Ohioans’ rights are protected.”
“We are disappointed that the attorney general continues to spend taxpayer money on this lawsuit and disregard the very clear message that Ohioans sent when an overwhelming majority approved the Reproductive Freedom Amendment to our constitution,” Hill said in a statement Tuesday afternoon.
The Attorney General’s Office said seeking appellate review “is a necessary and appropriate step.”
“The state respects the will of the people regarding the six-week abortion ban, but the state is also obligated to protect provisions in (Senate Bill) 23, as passed by the General Assembly and signed by the governor, that the constitutional amendment does not address,” spokesperson Bethany McCorkle said in a statement. “It is up to the courts to determine how conflicts between those two documents are resolved.”
