First of all, I want you to know that right now, abortion before 22 weeks gestation is legal across Ohio. There are 9 clinics providing medication and/or procedural abortion care to Ohioans across the state when they need it—in Toledo, Dayton, Columbus, Bedford Heights, Shaker Heights, Cuyahoga Falls, Cleveland, and Cincinnati.
But for two and a half agonizing months this summer that wasn’t the case. And now it is in the hands of Ohio’s elected judges to determine whether our state constitution protects a right to abortion. So what does that mean? How did we get here? And what happens next?
Let me share a very abridged summary of how we got where we are:
For nearly 50 years, the decision by the Supreme Court of the United States in Roe v. Wade protected a right to abortion nationwide, under the United States Constitution. Then, in June of this year the current Court made a major reversal. In Dobbs v. Jackson Women’s Health Organization, SCOTUS overturned Roe, and said the U.S. Constitution does not protect a right to pre-viability abortion. Rather, that the legality of abortion is to be determined by each state.
Conservative groups and politicians have been working hard for decades to restrict abortion in Ohio. As long as Roe was the law of the land, whenever they managed to pass laws restricting abortion, we could sue in federal court to try to have the law invalidated – and we were usually successful. But the protection of Roe was suddenly extinguished when S.B. 23, which was passed in 2019 and known by many as the “Heartbeat Bill,” went into effect. That is a state law that makes it a felony to provide an abortion if fetal cardiac activity can be detected—around 6 weeks after the pregnant person’s last menstrual period. At this early point in gestation, most people do not even realize that they are pregnant.
That is the law we are fighting in court right now. So, you know how we got here . . .
Where exactly is “here” and where does it lead?
Our lawsuit was filed in the Hamilton County Court of Common Pleas. Every case has to start somewhere, and most start in a trial court like this one. The basis of our lawsuit was that, even without Roe in place, Ohioans have a right to abortion that is enshrined in our State constitution. When we filed the suit we asked the judge to block S.B. 23 while the case is in progress. This is called a preliminary injunction and is something we seek when the government’s action inflicts irreversible harm on people - in this case banning nearly 90% of abortions. The judge agreed that several provisions in the Ohio Constitution protecting due process rights, privacy, and the right to health care protect access to abortion in our state. And so he issued a preliminary injunction order.
The state immediately filed an appeal, which will be heard by the First District Court of Appeals. Right now, that court is deciding whether it has jurisdiction to hear an appeal at this stage, because appeals courts in Ohio usually cannot review a lower court’s decision unless it is a “final appealable order.”
If the Appellate Court decides that it cannot review the preliminary injunction, the case will go back to the Common Pleas court, where it will proceed towards trial. There are a number of ways to end up back in the appeals court, however, before actually getting to a trial. Whether it is tomorrow or a few months from now, at some point the First District will almost certainly take up an appeal of this case.
And that brings us to what happens next.
Both sides will have to file briefs with the First District explaining why their position is the right one. If the court takes up the current appeal, those briefs will be due a little before and a little after the winter holidays. But either side could ask for more time. Once all of the briefs are in, there will likely be an oral argument in front of a panel of three judges.
It is always difficult to predict how long courts will take to decide a case, but at some point after the argument, the court will issue a decision. Depending on the outcome, this is where the protection of the trial court’s preliminary injunction order could be lost. But even if that happens, it can also be later restored. Whichever way it goes, with an issue like this one, with a significant impact on a lot of people, it is a certainty that the losing side will file another appeal. This time, it goes to the Supreme Court of Ohio.
Between the redistricting lawsuits and the recent election, you might have heard more about the Supreme Court of Ohio this year than in any year before. Two justices were re-elected to the court, and a third, Justice Sharon Kennedy, was elected to the role of Chief Justice. These three justices were all endorsed by Ohio Right to Life. Governor DeWine will be appointing a new justice to fill Chief Justice-elect Kennedy’s former seat. The other three justices are Democrats. Ultimately, it will be this group of seven who decide whether Ohio’s Constitution contains a right to legal abortion.
Given Ohio’s gerrymandered legislature, a right to abortion in the Ohio Constitution is essential to protect abortion access. There are a number of bills already in the Statehouse to restrict abortion further, even banning it outright. If we prevail at the Ohio Supreme Court, then those bills will be defeated. Whatever the future holds, our commitment to fight for the reproductive rights of Ohioans will remain.