Fighting for appeal of Ohio abortion ban injunction, state attorneys argues merits of law

By: - May 2, 2023 4:50 am

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Amidst an Ohio Supreme Court case on whether to allow the state to appeal a pause in Ohio’s six-week abortion ban, the state’s attorneys also explained their stance on the ban itself and the challengers to it.

While the basis of the court filing was procedural, requesting that the state’s highest court allow their appeal to a lower court’s decision blocking the six-week abortion ban, the 100-page merit brief also argued challengers did not “have standing to challenge the Heartbeat Act.”

“The Act protects unborn children and mothers alike,” attorneys for the state said. “It protects unborn children by largely prohibiting doctors from ending the lives of those whose hearts have started to beat.”

Supporters gave the abortion ban that moniker, claiming it banned abortions at the first sign of a fetal heartbeat, a term that has been debated within the medical community as abortion bans are considered across the country.

In asking for the appeal, the state also said the overall lawsuit seeking to stop the abortion ban attacks every branch of government, including “the executive branch’s power to defend, and the judicial branch’s power to invalidate, the legislative branch’s work.”

The merit brief also accused the First District Court of Appeals, who upheld the pause in the six-week abortion ban, of establishing “a precedent empowering trial courts around the state to hold state laws hostage.”

Allowing the state law to be paused for 18 months as the case goes through the courts would free abortion clinics and physicians “to violate Ohio law without consequence for the years-long duration of the case.”

“Further, if the state is forced to wait for a final judgment before appealing, there will be no way to compensate the state later for the thwarting of its right to protect lives lost in the interim,” attorneys for the state wrote.

The Ohio Attorney General’s Office also said “doctors have no right to perform abortions,” and using the argument that the abortion ban violates patients’ rights isn’t something doctors can do. A “third-party standing,” in legal terms, should be someone who sues because there is a “sufficiently close relationships with the person,” attorneys for the state said, citing previous case law.

“After all, how can the plaintiffs have a ‘close relationship’ with hypothetical future plaintiffs whose identities are literally unknowable,” the state asked in its merit brief.

With women able to sue physicians who perform abortions under the abortion ban, attorneys said there is also a conflict of interest in doctors suing on behalf of patients.

The case is still ongoing in the appeals court, even as both parties await a decision from the Ohio Supreme Court. Meanwhile, abortion rights advocates are working toward a July 5 deadline to collect signatures supporting the inclusion of an abortion initiative on ballots in November.

That effort is also shadowed by a GOP effort to get a ballot measure to voters in August, increasing the threshold needed to change the state constitution from 50% to 60%, and requiring signatures from all 88 counties in the state, rather than the current standards of 44 counties. The move has received sweeping, and bipartisan, criticism from the public and former state leaders.

The Ohio Supreme Court is also still deciding whether to take up a lawsuit challenging the decision of the Ohio Ballot Board to certify the abortion ballot measure, opening the doors for the signature collection. A pair of anti-abortion advocates sued saying the state board didn’t hold the proper amount of discussion, and even abused their power in allowing the initiative to go forward.



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Susan Tebben
Susan Tebben

Susan Tebben is an award-winning journalist with a decade of experience covering Ohio news, including courts and crime, Appalachian social issues, government, education, diversity and culture. She has worked for The Newark Advocate, The Glasgow (KY) Daily Times, The Athens Messenger, and WOUB Public Media. She has also had work featured on National Public Radio.