FACTS:

Following the U.S. Supreme Court’s decision in Dobbs v. Jackson’s Whole Women’s Health, Ohio’s most restrictive abortion ban went into effect. S.B. 23, the “heartbeat ban” criminalizes abortions after about 6 weeks, a point so early in gestation that most pregnant people do not even realize that they are pregnant. Approximately 90% of abortions performed in Ohio occur after that point. This law was passed and signed in 2019, but was enjoined by our federal lawsuit in the Southern District of Ohio. The injunction relied on the Roe holding that the federal constitution’s 14th Amendment Due Process Clause protects the right to abortion up until the time of fetal viability.  
 
We attempted to find immediate relief for Ohioans from the Ohio Supreme Court (see State ex rel. Preterm-Cleveland et al. v Yost et al.), but the Court did not act quickly enough to avert increasing harm to Ohioans needing abortion access. At least one Ohio clinic was facing imminent closure in mid-September. Immediate action was needed to restore abortion access to Ohioans.

 
LEGAL THEORY:

The Ohio Constitution provides broad protections for individual liberties that are independent of the United States Constitution. And our state constitution’s protections of fundamental rights – including the right to abortion – are more expansive than those of the U.S. Constitution. 

With regard to the right to abortion, the Ohio Constitution’s Due Course of Law Clause, provides that courts will redress injury to every person for injury done to his land, goods, person, or reputation. In contrast, the United States Constitution’s analogous provision, the Due Process Clause, speaks in terms of “life, liberty, or property,” so the Ohio Constitution has been seen to confer a more explicit right to personal autonomy. Additionally, the Ohio Constitution’s Health Care Freedom Amendment, which has no analogue in the U.S. Constitution, reinforces the argument that the Ohio Constitution’s substantive due process protection extends to a person’s fundamental right to decide whether to obtain an abortion free of government interference. Another source of protection of the right to abortion lies in the Ohio Constitution’s guarantee of Equal Protection. Ohio’s Equal Protection clause is also interpreted to provide greater protections than its federal counterpart.  


STATUS:

We filed our Complaint and Motion for Temporary Restraining Order followed by Preliminary Injunction on Friday, September 2. State Defendants filed their opposition to the TRO on September 7. The prosecutor defendants agreed not to defend the litigation, a position formalized in a stipulation filed on October 14. We filed a Reply in support on September 8. A TRO hearing was held on September 8. We filed a supplemental brief in support of the TRO on September 9. Defendants opposed the brief on September 12. On September 12, the Monday following the Thursday hearing, Judge Jenkins entered a TRO  for the maximum possible period of two weeks. 
 
The preliminary injunction hearing was set for October 7, and on September 22 the parties entered into a joint scheduling proposal. On September 27, the Court extended the TRO an additional two weeks. Defendants’ opposition to the preliminary injunction was filed on October 2 and our supplemental memo in support of the injunction was filed on October 5. Parties issued expert reports, conducted expedited fact and expert discovery, and exchanged motions in limine leading up to the hearing.
 
An in-person hearing in Hamilton County was held before Judge Jenkins on October 7. At the end of the day, the Judge read an extraordinary opinion from the bench granting the injunction. Plaintiffs submitted Findings of Fact and Conclusions of Law on October 11, and Defendants filed theirs the next day. On October 12, the Court entered the Preliminary Injunction Order and issued a written opinion finding that the Ohio Constitution protects a right to medical privacy and abortion is healthcare. Later that day, Defendants filed a Notice of Appeal to the First District Court of Appeals.

On October 28, the Court of Appeals ordered the parties to submit briefing on whether it had jurisdiction to hear the appeal at this point in the case. Ohio law only allows appellate courts to review “final, appealable order[s].” Defendant-appellants filed their memo in support of jurisdiction on November 9, and we filed a memo opposing jurisdiction on November 10. Defendant-appellants filed their merits brief on December 12. We sought an extension to file our merits brief, which was granted. On December 16, before our merits brief was due, the Court entered its decision that it lacked jurisdiction to review the preliminary injunction order and dismissed the appeal.

On January 3, Defendant-appellants filed a discretionary appeal of the appellate court’s decision to the Ohio Supreme Court. In late December, Governor DeWine appointed Hamilton County Prosecutor Joe Deters to the vacant Supreme Court seat. On January 11, we filed a letter with the Court, requesting Justice Deters’ recusal from the case, as he was a defendant in the case. 

Meanwhile, on December 8 in the trial court, we filed a joint scheduling plan covering the remainder of the case.  
Justice Deters agreed to recuse himself on January 27. We filed a memorandum opposing jurisdiction on February 2. On March 14, 2023, the Ohio Supreme Court announced that it would take the case on Propositions of Law 1 and 2, specifically, (a) whether the State can immediately appeal orders preliminarily enjoining state laws, and (b) whether abortion providers have third-party standing to challenge abortion bans. The Court declined to hear a direct appeal of the preliminary injunction. The state filed its merits brief on May 1. We filed our merits brief on June 20. The Academy of Medicine of Cleveland & Northern Ohio filed an amicus brief in support of plaintiff-appellees. Defendant-appellants filed a reply on July 6. Oral argument was held on the morning of September 27. It was argued for plaintiffs by Jessie Hill and is archived for public viewing on the Ohio Channel.

On December 15, the Ohio Supreme Court dismissed the appeal due to the change in law voted on by Ohioans in November. The case will return to the Hamilton County Common Pleas Court where it will be decided in the context of Issue 1.

Attorney(s)

Freda Levenson, ACLUOhio Cooperating Attorneys Jessie Hill and Becca Kendis, RFP Attorneys Meagan Burrows and Ryan Mendias, PPFA Attorneys Melissa Cohen and Sarah Mac Dougall

Pro Bono Law Firm(s)

WilmerHale

Date filed

September 2, 2022

Court

Hamilton County Court of Common Pleas

Judge

Christian A. Jenkins

Status

On appeal

Case number

A220203