Ohio Supreme Court sets date for arguments in abortion appeal

Case continues as state’s high court also considers challenge to Nov. ballot initiative

By: - August 11, 2023 4:55 am

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Update 8/14/23 – The Ohio Supreme Court rejected a lawsuit attempting to block the abortion ballot initiative from heading to the November general election.


The Ohio Supreme Court will hear arguments next month in a case regarding the indefinitely paused six-week abortion ban as it also decides whether to intervene in the November abortion ballot initiative process.

The state’s highest court set oral arguments for Sept. 27, when the Ohio Attorney General’s office will make their case as to why they appealed a preliminary injunction from a Hamilton County court, putting a temporary stop to the six-week abortion ban implemented hours after the U.S. Supreme Court’s Dobbs decision that overturned Roe v. Wade.

Health clinics, including Planned Parenthood of Greater Ohio, Planned Parenthood Southwest Ohio Region, Women’s Med Group Professional Corp., Toledo Women’s Center and Pre-Term Cleveland, will argue the injunction should stand as a referendum heads for voters ballots in November.

Attorney General Dave Yost appealed the case after a lower court said the preliminary injunction could stand, despite arguments from the state that the court did not have the jurisdiction to do so. The First District Court of Appeals also ruled that Ohio couldn’t appeal the decision of the Hamilton County court, leading the AG’s office to appeal to the Ohio Supreme Court.

The state attorney, who said the appeals court created a precedent to allow trial courts “to hold state laws hostage,” is asking the high court to both allow the appeal, and allow the 6-week ban to be put back in place, as it was in effect “for months” before the state was sued to stop the ban from continuing.

Pro-abortion groups on the other side of the lawsuit argue the abortion ban should not be in place, and that the Hamilton County court preserved the “status quo” by putting a stop to the abortion ban while the case winds itself through the courts.

In the most recent brief to the court, the AG’s office expressed concern about abortions that could take place in the time it takes for the case to run its course.

“The State may legislate to protect innocent life,” Solicitor General Benjamin Flowers wrote on behalf of AG Dave Yost. “The injunction interferes with the state’s ability to do so.”

The state attorneys claimed the “status quo” argument shouldn’t stand because “the state of abortion law has been vigorously contested ever since Roe v. Wade,” despite the fact that the 1970s decision was not overturned until 2022.

“So if the plaintiffs are right about the best way to define status quo, the relevant status quo occurred during the many years predating Roe, when no one imagined the Constitution guaranteed a right to abortion,” Flowers wrote for the state.

The state eschewed an argument that the six-week abortion ban “is not the best way for the state to go about promoting its interest in protecting innocent life,” saying it “has no bearing on the question whether the injunction here interferes with the state’s prerogative to protect innocent life in accordance with validly enacted state laws.”

“That … is a policy question for the legislature,” the AG’s office wrote.

Abortion rights groups go into the oral arguments with the backing of medical groups, such as the American College of Obstetricians and Gynecologists, the American Medical Association, the Society for Maternal-Fetal Medicine and the Academy of Medicine of Cleveland & Northern Ohio.

The groups filed their own brief with the state supreme court arguing abortion is a valid medical procedure, used not only for terminations of pregnancies but also for treatment of miscarriages and ectopic pregnancies that are already consider inviable and a threat to the pregnant person’s health.

The medical professionals in the groups told the court they feared physicians would be subject to all sorts of penalties, legal and disciplinary, if the General Assembly-enacted law was allowed to remain in place.

The national and Ohio chapter of the National Association of Social Workers also wrote an argument against the ban to the court, decrying “government interference” in individual medical decisions.

A letter from 18 conservative state attorneys general, helmed by Lynn Fitch of Mississippi – the state of origin for the Dobbs case – backed Ohio’s Attorney General and the re-implementation of the six-week ban.

Ballot initiative court battle

The November referendum is facing its own challenge in the Ohio Supreme Court, as a former state House Representative and anti-abortion advocates are attempting to block the measure from getting to voters. In the lawsuit, the challengers claim the ballot measure does not comply with state laws only allowing one issue per constitutional amendment.

The ballot initiative received nearly 500,000 valid voter signatures in support before the July 5 deadline, clearing the way for it to appear on the ballot, according to the Ohio Secretary of State’s Office.

Secretary of State Frank LaRose was represented by the state AG’s office in a brief for that case, saying he “takes no position on the merits” of the challenge, “other than to respectfully request that the court resolve the dispute between (the parties) as quickly as possible, so that the secretary and the 88 county boards of elections may administer the November 7, 2023, General Election, on which ballot the proposed initiative would appear, without delay.”

Ballot initiative creators and supporters pointed to the certification of the ballot measure by both the Attorney General’s Office, the verification of the language by the Ohio Ballot Board, which is led by LaRose, and the collection and verification of the 495,000 signatures as argument that the initiative should be allowed to carry on.

“The subject matter of this case stirs strong passions in Ohioans with different views,” Columbus attorney Don McTigue wrote to the court on behalf of the abortion rights supporters. “The ballot box — not this Court — is the proper forum for determining whether the Amendment will become law upon the approval of Ohioans, or whether (challengers) and others who share their views will instead succeed in persuading the voters to support their position and reject the Amendment.”



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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.