Leave us out of ‘Heartbeat Bill’ challenge, county prosecutors say

Prosecutors for Ohio’s major urban counties, including Montgomery, announced their neutrality in a lawsuit that seeks to block the state’s “Heartbeat Bill” abortion ban.

In a stipulation filed Tuesday with the Ohio Supreme Court, prosecutors or their representatives for Cuyahoga, Franklin, Hamilton, Lucas and Montgomery counties said they “will not actively defend” against Preterm-Cleveland et al. v. Dave Yost et al.

The signatories include Montgomery County Assistant Prosecuting Attorney Ward Barrentine, who speaks for Montgomery County Prosecutor Mathias Heck in the case.

In return, plaintiffs – the American Civil Liberties Union, the ACLU of Ohio and Planned Parenthood Federation of America on behalf of Ohio’s six abortion clinics and one doctor – agree not to seek any costs from those prosecutors or other officials in their counties.

On Wednesday, Ohio Attorney General Dave Yost and other state legal officials filed a motion to dismiss the case, saying the court lacks “subject matter jurisdiction” for such requests. The filing says plaintiffs are really asking for an injunction against enforcing the law and seeking to have the “Heartbeat Bill” declared unconstitutional.

ExploreOhio lawmakers introduce bill banning abortion beginning at conception

The “Heartbeat Bill,” Senate Bill 23, passed in 2019 but was blocked by a federal judge until the U.S. Supreme Court overturned Roe v. Wade June 24. Senate Bill 23 outlaws abortion after five or six weeks’ gestation, once a fetal heartbeat is detectable.

The lawsuit suit seeks to have SB 23 declared unconstitutional and return to the previous Ohio standard, which banned almost all abortions 22 weeks after the start of the mother’s last menstrual period.

Yost, state health officials and prosecutors in counties that are home to abortion clinics are named as defendants. That includes Montgomery County, with the Women’s Med Center of Dayton; and Hamilton County, with the Planned Parenthood Southwest Ohio.

Plaintiffs argue that many women have no physical indicators of pregnancy at six weeks, and varying menstrual patterns make dates of conception uncertain. Banning almost all abortions discriminates against women, particularly against the poor and minorities who receive the majority of abortions and can least afford their denial, the suit says.

State-level efforts are underway nationwide to restrict or protect abortion, including all those bordering Ohio.

A decades-old Michigan law banning most abortions has been suspended by the courts, with the Democratic governor asking the state supreme court to declare it unconstitutional while the Republican-controlled legislature seeks to implement it. A major effort to write abortion rights into the state constitution by referendum is also underway.

Pennsylvania’s Democratic governor signed an executive order protecting abortion access in that state, but a constitutional amendment is under consideration there to declare there is no right to an abortion.

Abortions ceased in West Virginia under a 150-year-old law that took effect following Roe’s overturn, but a state judge has now blocked its enforcement as conflicting with other state laws that do allow abortion. Republican state officials are arguing for the abortion ban’s reinstatement.

In Kentucky, state courts have so far blocked two laws that briefly stopped almost all abortions. Those laws are functionally identical to Ohio’s “Heartbeat Bill” and another bill currently in the General Assembly.

Indiana legislators are considering a special session to pass abortion restrictions, though those may include exceptions for rape, incest and the life or health of the pregnant person. Current Indiana law bans abortion after 22 weeks, the same as Ohio’s law before the “Heartbeat Bill” went into effect. A federal judge has also removed the block on a six-year-old Indiana law banning abortions based on gender, race or disability.

The governors of both Michigan and Pennsylvania have said they will not extradite people who travel to their states for abortions from places where abortion is illegal.

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