COLUMBUS, Ohio – The Ohio Supreme Court agreed Tuesday to review a county judge’s order that is blocking enforcement of the state's near-ban on abortions, and to consider whether the clinics challenging the law have legal standing to do so.
In its split decision, the court, however, denied Republican Attorney General Dave Yost's request to launch its own review of the right to an abortion under the Ohio Constitution, leaving those arguments to play out in lower court.
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This means abortions remain legal in the state for now, up to 20 weeks' gestation.
Yost appealed Hamilton County Common Pleas Judge Christian Jenkins’ order to the state’s high court in January, after a failed effort to get it overturned by the First District Court of Appeals. The appellate court ruled the appeal premature, as it was only an interim step in the lawsuit challenging the so-called heartbeat law's constitutionality.
Justices will now decide whether such orders are appropriate legal procedure, or attempts by lower courts to block laws they don't like, as Yost has asserted.
Chief Justice Sharon Kennedy, justices Pat DeWine and Pat Fischer and Ohio Court of Appeals Judge Matthew Byrne — sitting in due to Justice Joe Deters' recusal — voted in favor of the review. All are Republicans. The court's three Democrats dissented.
Kennedy, DeWine and Byrne all would have also taken up the question of whether Ohio's constitution guarantees a right to abortion, but Fischer did not support the idea.
Abortion rights organizations want the law to remain blocked, pointing to the chaos inflicted on patients, doctors and clinics during the 66 days that the Ohio ban was in effect last year.
The law signed by Republican Gov. Mike DeWine in April 2019 prohibits most abortions after the first detectable “fetal heartbeat.” Cardiac activity can be detected as early as six weeks into pregnancy, before many women know they’re pregnant.
The law had been blocked through a different legal challenge until right after the U.S. Supreme Court overturned its landmark Roe v. Wade decision legalizing abortion. The ruling effectively nullified all abortion-rights lawsuits across the country that had cited the federal constitution, sending the question back to the states.
The lawsuit filed in Jenkins' court argues a similar right exists under the Ohio Constitution.