Abortion in Ohio: Appeals court denies state's motion to reinforce six-week ban

CINCINNATI, Ohio (WCMH) – A Cincinnati appeals court denied Friday the state of Ohio’s motion to reinforce the state’s six-week abortion ban.

The First District Court of Appeals said Ohio acted prematurely in filing an appeal against a Hamilton County judge’s issuance of a preliminary injunction on Oct. 7 that indefinitely struck down Senate Bill 23, commonly known as the heartbeat law, which bans abortion once fetal cardiac activity is detected.

Judge Pierre Bergeron said the appeals court can only rule on the matter if Hamilton County Common Pleas Judge Christian Jenkins issues a final ruling on the constitutionality of SB 23 at the end of its trial. The appeals court has no jurisdiction, Bergeron said, over less-binding preliminary injunctions.

“We appreciate that many citizens may be interested in the resolution of the merits of this appeal, but we cannot expand our jurisdiction simply because the case is a significant one,” Judge Pierre Bergeron wrote. “In light of the foregoing analysis, we must dismiss this appeal.”

Plaintiffs challenging the six-week abortion ban, including the American Civil Liberties Union of Ohio and Planned Parenthood, applauded the First District Court’s decision.

“The state will fight us every step of the way but we know that Senate Bill 23 violates the Ohio Constitution and we are confident that the law is on our side,” plaintiffs’ representatives said in a statement.

In his October ruling, Jenkins said Ohio’s Constitution “clearly provides more expansive rights” in the areas of privacy, safety and healthcare — including abortion — than does the U.S. Constitution. Vague protections included within the state constitution, like life, liberty and the pursuit of happiness, “were purposefully left to gather meaning from experience.”

Jenkins, whose ruling restored abortion access up to 22 weeks in Ohio, referenced two cases where female cancer patients were denied chemotherapy until they terminated their pregnancies, yet could not do so because of the state's six-week ban.

He also took aim at the law’s effect on a 10-year-old Ohio rape victim who made national news after being forced to travel across state lines to obtain an abortion.

“This child was a victim of crime who should have had access to clearly needed health care in the form of abortion in her community,” Jenkins wrote. “S.B. 23 clearly discriminates against pregnant women and places an enormous burden on them to secure safe and effective health care such that it violates Ohio’s Equal Protection and Benefit Clause and is therefore unconstitutional.”

Following Jenkins’ decision, Attorney General Dave Yost said his office will continue fighting to preserve the state’s six-week abortion ban as it continues through court proceedings.

“I’m confident of my position that the Ohio Constitution does not contain the right to abortion,” Yost said in October. “We’ll see what the Supreme Court says someday once this process is done.”

A spokesperson for the ACLU of Ohio said the Hamilton County Common Pleas Court will next hold a hearing to schedule continued proceedings for the case.