Abortion providers make their case before Ohio Supreme Court; state to respond

The ACLU of Ohio, representing providers like Preterm Cleveland and Planned Parenthood, filed a brief with the Ohio Supreme Court Tuesday, saying the state’s appeal stemming from a Hamilton County preliminary injunction of the state’s six-week abortion ban should be dismissed.

On Sept. 14, 2022, a Hamilton County judge temporarily blocked Ohio’s ban on almost all abortions in the state. What started as a 14-day restraining order and then a preliminary injunction has since been appealed before the Ohio Supreme Court, which is still in the process of hearing arguments before making a decision.

The Hamilton County court’s ruling came as Women’s Med Center in Kettering, the Dayton area’s only surgical abortion clinic, was on the verge of closing.

“We have, in my tenure of 16 years at Ohio Right to Life, passed over 28 laws, pro-life laws, to protect the unborn and hold the abortion industry accountable, so we’re making sure right now that those laws are being enforced and the lives are being saved,” Mike Gonidakis, president of Ohio Right to Life, said. “We have some litigation right now with the Heartbeat Bill, of course, but we’ll win that ultimately at the Ohio Supreme Court, and we’re going to beat Planned Parenthood with their ballot initiative in November.”

The Ohio Supreme Court agreed to hear arguments on the appeal from Ohio Attorney General Dave Yost, but not all of them. The Ohio Supreme Court said it will address two of the state’s arguments, but not the third, which was the argument that the Ohio Constitution creates no right to abortion. Of what the court will address, the first argument involves whether the state could appeal the preliminary injunction before the trial court had finished its case. The state then made the second argument that neither “abortion clinics nor abortionists have standing to challenge the Heartbeat Act.”

Providers have been bringing these court challenges for 50 years on behalf of patients, said Freda Levenson, legal director for ACLU Ohio. The state is making the argument providers do not have enough of a sufficient connection to show their impact from the law.

“People don’t want to and shouldn’t be forced to share their very personal life like that, and then also a pregnancy doesn’t last as long as litigation,” Levenson said of why patients don’t bring the challenges themselves.

A merit brief filed by B. Jessie Hill, attorney representing ACLU of Ohio, along with other counsels representing the abortion and health providers, says the arguments before the court have “well-established answers.”

“Decades of Ohio caselaw hold that preliminary injunctions are not appealable except in specific, narrow circumstances not present here, and that third-party standing exists in circumstances such as these. Appellees request only that this Court follow its existing precedent by rejecting the State’s two propositions of law,” says the brief signed by Hill.

Depending on the outcome of the court’s rulings, which will come after the state files its response to this merit brief, the Heartbeat Bill could come back into effect if the court rules that providers don’t have the standing to bring forth these lawsuits.

“We could lose the protection of the injunction, and the six-week ban would come back into effect, which would be horrible,” Levenson said.

In addition to the merit brief filed this week, additional briefs supporting Preterm Cleveland and Planned Parenthood were filed by the Academy of Medicine of Cleveland and Northern Ohio, the National Association of Social Workers, the American College of Obstetricians and Gynecologists, the American Medical Association, and the Society for Maternal-Fetal Medicine.

The brief filed by the three latter organizations said the court should “affirm the lower courts’ decisions on standing and appealability.”

“Doing so is not only good law; it also supports the practice of good medicine,” said the brief signed by Subodh Chandra, representing the American College of Obstetricians and Gynecologists, the American Medical Association, and the Society for Maternal-Fetal Medicine.

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