COLUMBUS, Ohio — SEPTEMBER 20: The Gavel outside the Supreme Court of the State of Ohio, September 20, 2023, at 65 S. Front Street, Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original article.)
The Ohio Supreme Court on Wednesday heard arguments from both parties involved in the court case that would decide whether the six-week abortion ban law can continue in Ohio.
But the arguments the state’s highest court heard on Wednesday had more to do with whether the law should be paused while the Hamilton County court case continues, and not the constitutionality of the law itself.
The Ohio Attorney General’s Office, represented by state solicitor general Benjamin Flowers, argued that “irreparable harm” is being done by allowing a preliminary injunction — or temporary pause to the abortion law — to go on, even as the case has yet to be decided.
The state appealed to the Ohio Supreme Court after the First District Court of Appeals allowed the injunction to stand, thus keeping the law banning abortions after six-weeks gestation from taking effect until a lower court concludes its case on the legality of the law.
“The problem with the First District’s ruling is that if it’s right, then all 88 common pleas (courts) can unilaterally, indefinitely suspend operation of state law, for as long as it takes to conduct discovery, to hold the trial and to issue injunction,” Flowers told the supreme court justices on Monday.
The state’s highest court is currently deciding largely procedural matters: First, do they have jurisdiction to decide if the injunction can be appealed if it’s not a “final, appealable order,” and second, whether or not the physicians suing the state in the case have the right to sue on behalf of current and future patients.
The court won’t decide on the merits of the abortion law itself unless the Hamilton County case in which the preliminary injunction occurred is appealed to the justices once it’s decided.
“We have an interest in vindicating the law, so all we’re seeking here is to get into court,” Flowers said. “This isn’t about whether we win, it’s about whether we have a right to show up.”
But justices pushed back on arguments and asked questions that may show their current feelings on the law, even as they look at largely legal questions and not constitutionality.
“If the state is ultimately interested in being fair to the people, wouldn’t it want the court to take its time to ensure that a law that could be and seems to be likely to be unconstitutional wouldn’t be imposed upon the people unnecessarily?” Justice Jennifer Brunner asked Flowers.
Brunner went back and forth with Flowers on his arguments that the appeal was sent to the state’s highest court to speed up the process and avoid more harm, specifically more “irreversible medical procedures.”
“When you get to the abortion context, every abortion that occurs that would otherwise be prohibited interferes irreparably with the state’s interest in stopping that procedure from having happened,” Flowers said.
Brunner said, however, that both sides could argue the need for immediate relief to avoid irreparable harm and “things that we can never recover.”
“In this situation, the trial court essentially is giving more time to do more robust discovery and make more robust arguments, and then to reach a decision,” Brunner told Flowers.
The court also focused on the arguments made by the state that physicians who have sued to stop the law shouldn’t have the right, with Flowers saying the physicians have a “conflict of interest” that “destroys” their ability to represent current and future reproductive health patients.
“They’re not suing on behalf of particular women, they’re suing on behalf of the entire category of women who may ever seek abortions from them,” Flowers said. “They’d have to show that that entire category is unable to press their own rights.”
Brunner pushed back again, saying because of HIPAA, the federal medical privacy rule, providers may not be allowed to mention specific patients, and also said “the case law’s pretty favorable for them on the standings of these third-party current and future patients.”
She and Flowers continued their back and forth on a discussion of the relationship between a patient and a doctor. Flowers argued providers and Planned Parenthood, for example, don’t have the same relationship as a “family physician” or a cancer patient’s specialists.
“What you see here is only evidence of transactional, episodic interactions in which the patient meets with the plaintiff, the plaintiff provides the services and they may never see each other again,” Flowers told the court.
That relationship “is not as you portray it,” Brunner said, adding that while there may be “one-off situations” where there’s an abortion, it’s still a doctor-patient relationship.
In terms of a conflict of interest argued by the state in which physicians should not be able to stand up for patients’ rights because the law causes them to change their behavior and impacts their profession, Brunner discredited what she saw as Flowers’ portrayal of the medical profession as “some kind of monied factory.”
“They’re concerned that they could be prosecuted and lose their medical license, and they would then be unable to not only earn a living, but to help the people that they care about,” Brunner said.
Still, Brunner acknowledged that, for the purposes of the argument held Monday, “we really can’t get to that issue until we deal with the issue of whether or not we have jurisdiction to hear the case.” Flowers agreed.
On the other side of the case, attorney Jessie Hill fielded questions from Justice Patrick Fischer that wondered about the broader implications of the law. If physicians are allowed to act on behalf of patients, Fischer wondered if grandparents or “putative fathers” could stand in opposition to the elimination of the abortion law.
“Wouldn’t a putative father have more of a close relationship than a doctor (conducting) a one-time medical procedure,” Fischer asked.
Hill argued the physicians are the “better plaintiffs” to bring a lawsuit because of their “concrete, ongoing personal stake in the litigation,” and a case brought by a grandparent or father would be a different argument all together.
“Because the woman relies on the provider to exercise her rights, but the law only penalizes the provider, that’s a situation where the court has said the rights are interdependent, and therefore meets the requirement for third-party standing,” Hill said.
To the argument that patients could stand on their own in a lawsuit, Hill said patients are “seeking very time-sensitive health care,” and may be dealing with not only other health care concerns, but financial issues and lack of ability to hire an attorney.
“Even if they were to bring it, they’re not going to remain pregnant for very long … for the duration of the lawsuit,” Hill said. “At some point, her interest is extinguished.”
The court could take months to decide on the current case. The timeline could get complicated, with a ballot initiative to enter reproductive and abortion rights into the Ohio Constitution set to hit voters at the Nov. 7 general election.
The state supreme court had to rule on the ballot initiative itself several times, rejecting lawsuits seeking to block it, but also allowing summary language passed by the Ohio Ballot Board to stand.
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