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Attorney General asks Ohio Supreme Court to end pause on Heartbeat Law while the case proceeds

by | May 2, 2023

By Dave Andrusko

Attorney General Dave Yost has asked the Ohio Supreme Court to reinstate the state’s Heartbeat Law which Hamilton County Common Pleas Court Judge Christian Jenkins put on hold indefinitely on September 14th, 2022, making abortion legal once again through 22 weeks of pregnancy.

Yost maintained

If allowed to stand, the First District’s ruling will leave the State with no way to protect legislation from egregiously wrong preliminary injunctions. Trial courts that issue such injunctions have every incentive to drag out lower-court proceedings, ensuring their orders remain in effect —and that state laws with which they disagree remain unenforceable—for as long as possible. Nothing in Ohio law requires that result. To the contrary, Ohio law permits the State to immediately appeal orders preliminarily enjoining state laws. The Court should grant review to say so. 

In its 100-page merit brief, Yost also argued that the challengers—abortion clinics and individual abortionists —did not “have standing to challenge the Heartbeat Act.”

The Act “protects unborn children and mothers alike,” Yost wrote, adding “It protects unborn children by largely prohibiting doctors from ending the lives of those whose hearts have started to beat.”

Judge Jenkins issued the preliminary injunction from the bench on October 12 after a daylong hearing. The Associated Press’ Julie Carr Smyth wrote

“In impassioned remarks announcing his decision, Jenkins knocked the state’s arguments that the Ohio Constitution doesn’t ever mention abortion and so doesn’t protect the right to one. He said a right doesn’t have to be named to be protected. 

“This court has no difficulty holding that the Ohio Constitution confers a fundamental right on all of Ohioans to privacy, procreation, bodily integrity and freedom of choice in health care decision-making that encompasses the right to abortion.”

Yost appealed Jenkins’ preliminary injunction to Ohio’s First District Court of Appeals. On December 16, by a vote of 3-0, the appeals court said that Yost had appealed “prematurely.” 

Kevin Grasha and Jessie Balmert wrote

“Of course, any aggrieved party can appeal after the trial court issues its final judgment in the case,” Judge Pierre Bergeron said in the opinion. “Our answer on the merits of this dispute and the underlying constitutionality of the statute … must await another day.”

“The First District Court of Appeals has erred as a matter of law. We will seek review by the Ohio Supreme Court,” Yost spokeswoman Bethany McCorkle said.

Susan Tebben, writing the Ohio Capital Journal, noted

The merit brief also accused the First District Court of Appeals, who upheld the pause in the six-week abortion ban, of establishing “a precedent empowering trial courts around the state to hold state laws hostage.”

Allowing the state law to be paused for 18 months as the case goes through the courts would free abortion clinics and physicians “to violate Ohio law without consequence for the years-long duration of the case.”

“Further, if the state is forced to wait for a final judgment before appealing, there will be no way to compensate the state later for the thwarting of its right to protect lives lost in the interim,” attorneys for the state wrote.

The case is still ongoing in the appeals court, even as both parties await a decision from the Ohio Supreme Court. 

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