Outside interests flooded into an Ohio lawsuit against the state’s six-week abortion ban, in the form of 18 other states filing a “friend of the court” brief supporting Ohio’s abortion ban law.
While the Ohio Supreme Court is currently only considering a procedural case to allow the state to appeal a pause on the six-week abortion ban implemented after Roe v. Wade was overturned, other states have jumped in with their input on the ban overall.
Mississippi, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Texas, Utah and West Virginia were all represented in a “friends of the court” brief asking the court to keep abortion care providers from challenging laws that regulate or ban such care, calling the previous legalization of abortion “a distortion of the law.”
Leading the merit brief was the office of Mississippi’s attorney general, Lynn Fitch, with agreement from attorneys general from every other state.
It was a 2018 Mississippi law in that stay that sought to ban all abortions after 15 weeks of pregnancy, and the lawsuit fighting that law was Dobbs v. Jackson Women’s Health Organization. The U.S. Supreme Court’s ruling in that case overturned Roe v. Wade, sending abortion care in the country into chaos, and causing a state-by-state debate as to abortion legality.
Ohio abortion providers had braced for the decision after a leaked draft opinion hinted at the loss of nationwide abortion rights. But Ohio legislators and Attorney General Dave Yost worked quickly to establish the ban in Ohio.
Just as quickly, abortion rights advocates worked to get the six-week abortion ban back to court, where it had previously been entangled.
In the newest court case, Mississippi and the other states did as the state of Ohio did, arguing that abortion providers should not be allowed to act in “third party standing,” that is on behalf of unspecified current and future patients.
Ohio went so far as to say the lawsuit challenging the six-week abortion ban stood as an attack on every branch of state government, “the executive branch’s power to defend, and the judicial branch’s power to invalidate, the legislative branch’s work.”
In terms of the “third-party standing” of abortion providers, Yost argued doctors “have no right to perform abortions” and abortion providers can’t have a close relationship with “hypothetical future plaintiffs whose identities are literally unknowable.”
The other states agreed with this argument in their merit brief on the case.
“Abortion providers often do not even know these women,” the states wrote in the brief. “They commonly seek to sue on behalf of unknown women who may in the future come to them seeking abortions.”
The outside states said the relationship between current physicians and patients in abortion care “is usually ‘brief,’ shallow and transactional,” referencing language used by U.S. Supreme Court Justice Samuel Alito.
The states also push back against arguments made by abortion rights supporters, who said there is a “hindrance” to women in banning abortion past six weeks of pregnancy.
“Upholding the abortion providers’ standing here would require distorting the law in service of a putative right to abortion,” the brief stated.
As the court case goes forward with a deadline of June 20 for other merit briefs in the case, abortion supporters are seeking relief another way: a ballot initiative set to go before voters in November.
Supporters are currently collecting signatures to bring the measure to the November ballot. Meanwhile, Ohio Republican lawmakers have teed up an Aug. 8 special election for a proposal to make it harder for voters to amend the Ohio Constitution by raising the threshold to 60% and drastically expanding the signature requirements to get a proposal on the ballot. The GOP supermajority effort to move that measure to August progressed last week, as the Senate concurred with House changes to SJR 2.
That win may be mired by a lawsuit seeking to stop the measure, however, as the legality of setting an election in a resolution that conflicts with state law is now the subject of other litigation.
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