Ohio voters just passed abortion protections. When and how they come into effect depends on the court

(Carolyn Kaster/Associated Press)

Ohio voters just passed abortion protections. When and how they come into effect depends on the court



November 24, 2023

Ohio’s new constitutional protections for access to abortion and other reproductive rights take effect in December. 7, a month after voters passed them outright. How and when its effects will be felt remains unclear.

Existing abortion-related lawsuits are moving through the courts again as voters decide the issue, raising questions about their implementation.

The amendment declared the right of individuals to make and implement their own reproductive decisions and passed with a strong majority of 57%. It was the seventh straight victory in statewide votes for abortion access advocates nationally since the U.S. Supreme Court struck down constitutional protections.

But the amendment that voters approved on Nov. 7 did not repeal existing laws in Ohio, prompting some anti-abortion activists to increase pressure on Republican elected officials to expand their efforts to stop, delay or to be weakened considerably.

Much of that hard work figuring out which state laws don’t comply with the amendment and which state laws can remain usually ends up in the courts, said Laura Hermer, a professor.

of the law

at Mitchell Hamline School of Law in St. Paul


which studies access to health care and care in the US. “It’s hard to imagine that the Legislature is going to say, OK, you win. We’re going to repeal the heartbeat ban,” and so on.

The state legislature is controlled by Republicans whose leaders opposed the November ballot amendment known as Issue 1. The Ohio Supreme Court is also controlled by Republicans, who have a 4-3 majority, and will hold the final be a judge on constitutional issues. Several Republican judges have taken actions or made statements over the years that have led abortion rights organizations and ethics advocates to question their objectivity on the subject.

Minority Democrats in the Ohio House announced legislation two days after the election aimed at avoiding a piecemeal approach to implementing the amendment. They called, among other things, for a repeat of the U.S. ban on most abortions after detecting fetal heart activity, which is about six weeks, and a 24-hour waiting period.

There are more than 30 different restrictions in place,” said state Rep. Beth Liston, a physician and co-author of the Reproductive Care Act. “And I think it is important that we do not require citizens to go to court for everyone. limitation, and, quite frankly, that we don’t allow any harm to occur in the meantime.

House Minority Leader Allison Russo was not careful in criticizing the Supreme Court, which holds sway over the fate of these laws.

“I hope they will uphold the rule of law and the constitution,” she said.

Chief Justice Sharon Kennedy last week ordered lawyers for the state and a group of abortion clinics to tell the court how they think passage of the measures affected a case involving Ohio’s ban on most abortions once the fetal cardiac activity was detected, which has since been suspended. October 2022.

A day after voters approved the amendment, U.S. District Judge Michael Barrett made a similar request to the parties in a long-running federal lawsuit challenging a series of state restrictions imposed on the activities of abortion providers. They include a requirement that clinics enter into agreements with a nearby hospital for emergency patient transfers, as well as a ban on public hospitals entering into such agreements.

At least three other abortion bills in Ohio are also on hold in the courts.

Passing legislation to bring Ohio law into line with the new constitutional amendment has so far been a non-starter among Republican lawmakers, who have largely opposed it and taken extraordinary steps to defeat it.

With primaries just a few months away in their Republican Party-heavy districts, they are facing fierce pressure from anti-abortion groups to go the other way and either pass bills that would block the amendment or supermajority to deprive courts of their power to interpret it.

The [Ohio] The Constitution specifically says that reining in out-of-control courts is the job of lawmakers,” the anti-abortion group Faith2Action argues in a recently released video. So let’s call on lawmakers to do their job, use their constitutionally granted right to represent us, and stop pro-abortion judges from striking down Ohio’s laws based on an amendment that doesn’t even mention a single Ohio law.

The video argues that the right to life enshrined in the Ohio Constitution is inalienable and that the U.S. Supreme Court decision upholding Roe vs. Wade was overturned, brought the abortion issue to the elected representatives.

But in his concurring opinion in that ruling, Judge Brett says


Kavanaugh, an appointee of the former president


Trump wrote that constitutional amendments were among the options to determine the future of abortion access.

Furthermore, the Constitution authorizes the creation of new state and federal, statutory and constitutional rights,” Kavanaugh wrote. “But when it comes to creating new rights, the Constitution guides people to the various processes of democratic self-government envisioned in the Constitution. state legislation, state constitutional amendments, federal legislation and federal constitutional amendments.

For now, Ohio House Republican Speaker Jason Stephens has said legislation targeting the power of state courts will not be considered. GOP Senate President Matt Huffman has ruled out legislation that would push for an immediate repeal of Issue 1 as once suggested, saying such a thing should not be attempted, at least in 2024.


Attorney General

Atty. Gen. Dave Yost will continue and will be closely watched.

In a legal analysis of Issue 1 that the Republican published before the election, Yost said the amendment created a new standard for protecting abortion access that goes beyond the law of the land under Roe vs. Wade.

That means many Ohio laws would likely be declared invalid… and other laws could be in varying degrees of jeopardy, he wrote.

Hermer, the law professor, said the statement is useful for lawyers fighting to pass the constitutional amendment, but such an analysis is not legally binding on Yost.

He doesn’t necessarily have to resign, but that said, it’s obviously going to be a little bit harder to hold those kinds of positions, she said.


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