Ohio Supreme Court accepts state appeal over case involving state abortion law

The Ohio Supreme Court on Tuesday announced it will hear the state’s appeal of an appellate court’s decision on a preliminary injunction on Ohio’s abortion law.

This announcement comes after Ohio Supreme Court Chief Justice Sharon Kennedy on Thursday assigned Matthew Byrne, a Twelfth District Court of Appeals judge, to fill the space left by Justice Joseph Deters, who recused himself from the case. Deters is a former Hamilton County prosecutor.

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Hamilton County is from where the case originally stems. In September, Planned Parenthood and Ohio abortion clinics filed suit in Hamilton County Common Pleas Court, challenging Ohio’s Heartbeat Law in full, and seeking a preliminary injunction for now. In October, Hamilton County Judge Christian Jenkins issued that preliminary injunction, temporarily halting the Heartbeat Law pending a trial.

The state appealed the preliminary injunction issued in the trial court in Hamilton County to Ohio’s First District Court of Appeals. That appellate court raised the question of whether it had the jurisdiction to rule on the injunction as the injunction was a preliminary one and not a permanent one.

The appellate court’s ruling found that the injunction had been appealed prematurely as the trial court has not yet finished its case.

While the appellate court’s ruling would have sent the case back to the trial court, Ohio Attorney General Dave Yost then appealed the appellate court’s decision to the Ohio Supreme Court. In his brief, Yost said the state appellate court erred in dismissing the state’s appeal of the preliminary injunction. Yost then asked the Ohio Supreme Court to the overturn the appellate court’s decision.

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About the Ohio Supreme Court’s decision to take up the appeal, Michael Gonidakis, president of Ohio Right to Life, said, “We believe the court mostly got it right.”

This week, the Ohio Supreme Court said it will address two of the state’s arguments, but not the third. The first argument involves whether the state could appeal the preliminary injunction before the trial court had finished its case. The state’s then made the second argument that neither “abortion clinics nor abortionists have standing to challenge the Heartbeat Act.”

The state’s third argument, which the court will not address, argued that the “Ohio Constitution creates no right to abortion.” Kennedy, Byrne, and Justice R. Patrick DeWine were in favor of accepting the appeal on all of the propositions, but Justices Donnelly, Stewart, and Brunner dissented, creating a tie, according to the court’s announcement. Justice Patrick Fisher did not appear to participate in the vote either way.

Gonidakis said he believed the court should also address the constitutionality of abortion, but he was supportive of the court’s decision to review the appeal. He said Ohio Right to Life believed it was imperative for the court to rule on the preliminary injunction and whether that can be appealed while the trial court case is still proceeding.

“The Heartbeat Law should stay in effect while its being litigated,” Gonidakis said. “We believe the court should expedite this and rule accordingly.”

The court ordered for the transmittal of the record from the Court of Appeals for Hamilton County and said the parties shall brief this case in accordance with the rules of practice of the Supreme Court of Ohio.

Groups supportive of access to abortion said they were glad the Ohio Supreme Court decided not to address all of the state’s arguments, but added they believe abortion will eventually come before the court, even if it’s not with this current appeal.

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“We’re very glad the Ohio Supreme Court decided not to prematurely take up the Ohio Constitutional issue. The lower courts must decide this issue before an appeal is ripe,” said Freda Levenson, legal director for ACLU Ohio. “Whatever reprieve we have is only temporary, however. When the Ohio Supreme Court does address the heart of this case, as it inevitably will, Ohioans will likely lose abortion access. This is why we need to enact an amendment to our State Constitution, providing explicit protection for abortion – so explicit that even a hostile court cannot read it out.”

The court’s announcement also comes one day after groups seeking to bring an amendment to the Ohio Constitution before voters in the November election that would ensure access to abortion clear their latest hurdle. Language for a citizen-led ballot initiative that would ensure access to abortion through a proposed amendment to the Ohio Constitution was approved Monday by the Ohio Ballot Board.

Moving forward, groups behind the proposed constitutional amendment, will need to collect over 400,000 valid signatures of Ohio voters by July 5 to qualify the proposed amendment for the November ballot.

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