The court reacted quickly, ordering the named defendants to file a response to the request for an emergency stay no later than noon Thursday.
The lawsuit names as defendants Ohio Attorney General Dave Yost, state health officials, and prosecutors in counties that are home to abortion clinics. Those include prosecutors Joseph Deters in Hamilton County and Mathias Heck in Montgomery County.
Yost issued a statement on the lawsuit Wednesday afternoon.
“Races don’t start at the finish line, and lawsuits don’t start in the final court,” he said. “Aside from filing the wrong action in the wrong court, they are wrong as well on Ohio law. Abortion is not in the Ohio Constitution.”
The lawsuit seeks to again block Senate Bill 23, known as the “Heartbeat Bill,” which bans abortions after a fetal heartbeat can be detected. It became law in 2019 but swiftly blocked by a federal judge. That injunction, however, was lifted June 24 after the U.S. Supreme Court overturned Roe v. Wade.
“Right now, Ohio patients seeking care beyond six weeks are forced to travel hundreds of miles to access abortion, carry pregnancies to term against their will, or seek care outside the medical system,” Jessie Hill, cooperating attorney for the ACLU of Ohio, said in the announcement. “Senate Bill 23 was blocked for nearly three years, and after being in effect for just a few days, the real-world ramifications are horrific. This law must be stopped.”
Mike Gonidakis, president of Ohio Right to Life, issued a statement Wednesday scoffing at the lawsuit. He said the Ohio Supreme Court doesn’t have jurisdiction in cases where lower courts can rule, and that includes consideration of SB 23.
Gonidakis alleges that plaintiffs filed with the state supreme court because they believe it has a “pro-abortion majority that will probably vanish after the fall election, and so want a supreme court ruling before that happens.
“In making that request, plaintiffs are asking the Ohio Supreme Court justices to violate the constitutional limits of (their) jurisdiction, in violation of their oaths of office,” he said.
Three of the court’s seven seats are on the Nov. 8 ballot. All three are currently held by Republicans: Chief Justice Maureen O’Connor and justices Pat Fischer and Pat DeWine.
The clinics’ suit seeks to have SB 23 declared unconstitutional and return to the previous Ohio standard, which banned almost all abortions 22 weeks after the mother’s last menstrual period.
Plaintiffs argue that many women have no physical indicators of pregnancy at six weeks, and varying menstrual patterns make dates of conception uncertain. Banning almost all abortions discriminates against women, particularly against the poor and minorities who receive the majority of abortions and can least afford their denial, the suit says.
“Even for those patients who do know they are pregnant early on, many face significant logistical obstacles that make it difficult, if not impossible, to obtain an abortion before six weeks,” the lawsuit says. “More time is often needed to obtain leave from work, arrange for childcare (since the majority of women who obtain abortions already have at least one child), find transportation to a provider, secure funds for the abortion and/or travel, and actually travel to a provider.”
Other Ohio laws make that even more difficult, such as requiring an in-person trip to a clinic at least 24 hours before an abortion, due to requirements for counseling, an ultrasound, and information on the procedure.
In the six months before SB 23 went into effect, fewer than 1% of abortions performed in the Cincinnati clinic were done before 6 weeks’ gestation, the suit says. That clinic has had to cancel more than 600 appointments since SB 23 took effect, including some who didn’t hear the news until they arrived at the clinic.
“Many patients broke down in tears at the clinic when denied an abortion,” the lawsuit says.
Some threatened to commit suicide; one patient said she’d try to end her pregnancy by drinking bleach, and another asked how much vitamin C she’d need to take to end her pregnancy, the suit says.
The lawsuit argues that the Ohio state constitution provides broader protections than the U.S. constitution.
“This sweeping measure (SB 23), which prevents nearly every pregnant person from accessing essential care, is blatantly unconstitutional under Ohio’s state constitution which has broad protections for individual liberties,” Freda Levenson, legal director for the ACLU of Ohio, said in a news release.
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