Abortion Issues Pushing Through Ohio, National Courts

~ Article from Ohio Capital Journal, by Susan Tebben~

Reproductive rights, including abortion, continue to be hot topics in Ohio and in the country as a new lawsuit seeks to reverse state law related to abortion, the battle over the six-week abortion ban goes through the courts and the U.S. Supreme Court prepares to decide a case on abortion medication.

Since the establishment of reproductive rights in the Ohio Constitution with the approval of Issue 1 in November, abortion rights supporters have pledged to undo regulations in the state that they say go against the newest constitutional amendment.

Last week, the ACLU and the Planned Parenthood Federation of America announced a lawsuit to eliminate “several Ohio laws that together force abortion patients to wait a minimum of 24 hours after receiving unnecessary state-mandated information in person before they can access their desired abortion care,” according to a press release from the clinics represented in the suit.

The litigation was filed in the Franklin County Court of Common Pleas, with Planned Parenthood of Greater Ohio, Planned Parenthood Southwest Ohio Region, Preterm-Cleveland, Women’s Med Group Professional Corporation, Northeast Ohio Women’s Center and Women’s Med’s Dr. Catherine Romanos listed as parties.

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“By eliminating the burdensome and unnecessary 24-hour waiting period, we will be able to better serve our patients, and they will be able to return to their lives sooner after receiving the health care they need and deserve,” Dr. Adarsh Krishen, chief medical officer of PPGOH, said in a statement.

According to the ACLU, the laws violate a part of the constitutional amendment that prohibits state intervention that would result in “burdening, prohibiting, penalizing and interfering with access to abortion, and discriminating against abortion patients and providers.”

“With the Ohio Constitution now explicitly protecting the right to abortion, discriminatory restrictions that require only abortion patients to delay receiving medical treatment that they have already firmly decided they want, to make additional unnecessary in-person visits to a clinic to receive that care and to receive irrelevant and potentially distressing and stigmatizing information can finally be dismantled,” ACLU Reproductive Freedom Project staff attorney Meagan Burrows said in a statement.

In the language of the lawsuit, the groups argue the requirements held in state law “provide no health benefit whatsoever to patients and lack any medical justification,” “undermine patient autonomy” and “prevent clinicians from tailoring their provision of information and medical care to individual patients based on their specific circumstances and needs.”

The groups are asking the court to pause the state laws while the suit makes its way through the court system and issue a final judgment deeming the laws unconstitutional, keeping them from being enforced permanently.

Six-week abortion ban

As a new lawsuit begins, a previously filed lawsuit regarding the state’s six-week abortion ban saw some progress.

The Ohio Attorney General’s Office acknowledged in a recent court filing that the “core prohibition” in Senate Bill 23, the 2019 bill that enacted a ban on abortion at the detection of fetal cardiac activity, “is invalid under the latest version of the Ohio Constitution.”

“Thus, the state does not oppose a declaration specifying that that core prohibition … is now unconstitutional under Ohio’s new amendment,” court documents stated. “The state likewise does not oppose an injunction against enforcement of that law.”

The filing was in a Hamilton County case that was brought about in 2022 after Roe v. Wade was struck down and state Attorney General Dave Yost successfully got the law released from its previous legal entanglements. Initially, advocates filed the case with the Ohio Supreme Court, but the parties filed a new suit in Hamilton County after what they perceived as foot-dragging from the state’s highest court.

Advocates received a victory in the midst of the Hamilton County lawsuit when the Ohio Supreme Court rejected a request by the state to allow the ban to remain in place as the lawsuit continued. The state’s highest court turned down the request due to “a change in law,” which was not specified but is thought to be a nod to the reproductive rights amendment.

The acknowledgment by the state attorney general’s office did not indicate the state was giving up, however. Yost’s office went on to say the abortion rights supporters “leave open the possibility that they are demanding more than what the people of Ohio enacted through the amendment.”

The state attorney said because of “ambiguous and inconsistent phrasing” in the motion for judgment in the case, abortion rights supporters “potentially demand invalidation of additional statutory provisions beyond the core prohibition itself,” including the requirement that physicians check for a fetal heartbeat before providing an abortion.

The attorney general’s office said other pending cases “seek to commandeer the amendment for their own purposes, claiming in the aggregate that the amendment bars all laws that touch on abortion – and even some laws that have nothing to do with abortion or anything else the amendment mentions.”

“Just as it is the state government’s duty to respect the will of the people by conceding the invalidity of a statutory provision that conflicts with the current language of the Ohio Constitution, it is also the state government’s duty to respect the will of the people by defending statutory provisions that the amendment does not invalidate against meritless attack,” court documents stated.

The state asked that the court keep its rulings limited to the six-week abortion regulation, and leave whole other parts of SB 93, such as checking for a heartbeat before conducting an abortion.

U.S. Supreme Court and medication abortion

As the state fights its battles, the country is also awaiting a decision by the U.S. Supreme Court as to whether or not FDA approval of mifepristone, a pill used in miscarriage care along with medication abortions, can stand as it currently does.

The medication is typically used in conjunction with another medication, misoprostol, for medication abortions, but only mifepristone is being targeted in the litigation. This could be because while mifepristone is used “almost exclusively” for miscarriage and abortion care, misoprostol can also be used in “routine pregnancy care, to induce labor and to stop excess postpartum bleeding,” according to Dr. Nancy Li, a family medicine physician and executive board member and secretary of Ohio Physicians for Reproductive Rights, the group who led the charge on supporting the constitutional amendment last November.

Approval of the drug initially happened 24 years ago, but anti-abortion rights advocates who brought the case want regulations moved back to what they were before 2016, when the FDA approved the drug for use up to 10 weeks gestation, rather than the previous limit of seven weeks.

Previous rules about the number of in-person doctor visits and a ban on mail-order prescriptions could also return if the Supreme Court rules in favor of anti-abortion rights groups.

Parties made arguments before the court in late March, and a decision is expected this summer.

OPRR is keeping tabs on the mifepristone case and its impact on medicine, in Ohio and around the country. Ohio pediatrician Dr. Lauren Beene, co-founder and vice president of OPPR, said altering or reducing FDA approval of the drug “would completely undermine all medication standards,” considering the “decades of data” on the safety and usage of the drug.

“From a medical standpoint, it makes no sense,” Beene told the Ohio Capital Journal.

According to the Guttmacher Institute, medication abortions represented 63% of all abortions in the U.S. in 2023, up from 53% in 2020.

In the Ohio Department of Health’s 2022 induced abortion report, the most recent report available, mifepristone was reported in 8,966 of the 9,225 non-surgical abortions in the state. In comparison, the most frequently used surgical abortion method used, curettage suction, was reported in 7,822 abortions.

Medication abortions are more accessible for those who live in an area of the state that doesn’t have a surgical center. That means removing access to that option for Ohioans would impact certain communities more than others, and the precedent set by reversing FDA approvals could have longer-reaching impacts, such as reversal of approvals for other non-related drugs.

“This could lead to a much broader public health crisis,” Beene said.

A separate impact from all the legal battles, in the nation’s highest court and in Ohio’s courts, could be a galvanization of those opposing politicization of personal issues like medical care.

“(Ohioans are) not really intimidated much by these forces that have been trying to strip away our rights for their own selfish gain,” the doctor said. “My sense is that the people that find this issue important are not going to slow down in making sure those (state) laws are no longer in place and that their voice is heard.”

This story was originally published by the Ohio Capital Journal and republished here with permission.

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