Ohio Supreme Court Hears Challenge to Pause of Abortion Ban

UPDATE: The Ohio Supreme Court dismissed an appeal in Preterm-Cleveland v. Yost on December 15, 2023, “due to a change in law,” preserving the block on a six-week abortion ban. This decision follows the November 7, 2023, vote on a ballot measure enshrining the right to abortion in the Ohio constitution, which won by about thirteen percentage points.

Ohio’s supreme court is embroiled in a fight over abortion rights being waged on two fronts. This Wednesday, it will hear oral arguments on whether to reinstate a six-week abortion ban that was temporarily blocked by a trial court pending a final decision on the ban’s legality. The case, Preterm-Cleveland v. Yost, has attracted attention not only because of the specific claims before the court but also because of its timing: Ohioans are set to vote on November 7 on a proposed amendment to enshrine abortion rights in the state constitution.

The claims currently before the Ohio Supreme Court do not go to the ultimate question of whether Ohio’s abortion ban complies with the state constitution. Rather, the state has raised two significant procedural arguments with potentially broad implications. The first issue before the court is whether the state should be allowed to immediately appeal the trial court’s preliminary injunction. The second question is whether abortion providers have third-party standing to assert their patients’ right to abortion. How both questions are settled will inform how future abortion litigation plays out in the state and have wider significance for the separation of powers under Ohio law.

Ohio’s 2019 abortion ban, which came into effect hours after the U.S. Supreme Court overturned Roe v. Wade last June, is currently on hold while a trial court considers claims by several health clinics that the law violates the Ohio Constitution’s protections for individual liberty and equal protection. The state’s attempt to appeal this preliminary injunction was rejected by the First District Court of Appeals, which ordered the state to wait until a final judgment before pursuing an appeal. Now the state attorney general is asking the Ohio Supreme Court to rule that the preliminary injunction is immediately appealable and to reinstate the ban on the basis that the health clinics and doctors who filed suit lacked standing to bring the suit in the first instance.

In its brief, the state argues that denying its ability to appeal undermines the separation of powers and empowers trial courts to effectively “hold state laws hostage” by delaying final judgment in a case. It further argues that pausing the abortion ban causes irreparable harm by thwarting the state’s interests in regulating the medical profession and protecting fetal life. These irreparable injuries, it claims, are enough to meet Ohio law’s specific requirements for permitting immediate appeals of preliminary court orders.

On the other hand, the health clinics, including Planned Parenthood of Greater Ohio and Preterm-Cleveland, argue that the preliminary injunction should stand because it preserves Ohio’s decades-long status quo of legal and safe abortion access while the underlying challenge to the ban is decided. They argue in their brief that the state is seeking to depart from well-established rules and doctrine that permit appeals of preliminary injunctions under only narrow circumstances. It is the state, they argue, “that seeks to circumvent the separation of powers” by putting “the executive branch above the other branches.”

Separate from the state’s right to appeal the preliminary injunction against the abortion ban, the Ohio Supreme Court is also considering the scope of third-party standing under Ohio law. Two major points of contention are whether abortion providers have a close enough relationship with their patients to sue on their behalf and whether there are obstacles preventing patients from filing their own lawsuits that would make providers better positioned to do so.

At the same time, Ohio’s legal landscape with respect to reproductive rights may change significantly with November’s ballot measure. If the amendment succeeds, Ohio will join a growing number of states that have relied on the relative ease of amending many state constitutions through direct democracy to codify reproductive rights. However, a ruling in Preterm-Cleveland that the plaintiffs lack third-party standing could make it more difficult to bring lawsuits under the new amendment.

The amendment itself has also faced substantial hurdles, including a constitutional amendment proposed by the legislature to make it harder to amend the state constitution; voters rejected that proposal in August. And just last week, the Ohio Supreme Court approved with only minor modifications ballot language that reproductive rights groups claim uses misleading and biased terms, including the phrase “unborn child.”

The concurrent disputes before the state high court over the abortion ban and the abortion amendment highlight the increasing complexity of reproductive rights issues in the states — and the continued importance of state supreme courts in settling them.