Eighteen state attorney generals have signed onto a brief filed by Ohio Attorney General Dave Yost trying to overturn a lower court’s preliminary injunction on the state’s Heartbeat Act which blocks the majority of abortions once a fetal heartbeat is found.
Yost filed the 20-page brief on Monday at the Ohio Supreme Court saying that the high court should dismiss the preliminary injunction on enforcing the state’s Heartbeat Act because the plaintiffs are clinics and not patients.
Last October, Democratic Hamilton County Common Pleas Judge Christian Jenkins preliminarily blocked the law allowing abortions to continue in Ohio through 21 weeks and six days into the pregnancy for the case duration.
According to Yost, Ohio does not have a constitutional right to abortion. Additionally, abortion facilities, as opposed to people seeking abortions, lack the legal standing to challenge Ohio’s limits on abortion. Although Ohio law permits parties to have standing if they have a close relationship with the individual with the right to bring the lawsuit, the states contend that abortion clinics are not close to patients.
“Abortion providers often do not even know these women. They commonly seek to sue on behalf of unknown women who may in the future come to them seeking abortions. And for the women that they do know, the women’s relationship with abortion providers is usually “brief,” shallow, and transactional: often just minutes long,” the brief says.
According to the brief, Jenkins misjudged when he determined that the clinics had legal standing and placed the preliminary injunction on the Heartbeat Act.
“This Court is now called upon to decide whether to accord abortion providers third-party standing to challenge restrictions on abortion, like those in the Heartbeat Act, based on women’s claimed right to abortion. The trial court ruled that abortion providers have such standing. This Court should reject that view,” the brief says.
According to the brief, when the U.S. Supreme Court overturned Roe v. Wade on June 24th, 2022, questions about abortion legality were left up to each state. Federal abortion cases were pervaded by special rules that applied largely or only in the abortion context.
“The U.S. Supreme Court applied a special standard of scrutiny (the undue-burden standard) to abortion claims. The Court applied a special test for facial constitutional challenges (the large-fraction test). And ordinary principles of statutory interpretation often fell ‘by the wayside’ when the Court confronted a statute regulating abortion,” the brief says.
Since the overturn of Roe v. Wade, the brief claims that courts can make decisions based on more commonplace criteria. This includes one’s legal standing, which involves having the authority to bring a lawsuit. The states contend that, in this instance, the abortion facilities do not have that right.
The Heartbeat Act went into effect the same day the U.S. Supreme Court overturned Roe v. Wade. In accordance with the 2019 Ohio law, doctors are not permitted to perform abortions once heart activity has been identified or around six weeks into a pregnancy.
In September, Jenkins issued a number of orders that stopped the statute until the preliminary injunction in October.
The state appealed the preliminary injunction to Ohio’s First District Court of Appeals through Attorney General Yost. Because the injunction was only preliminary and not permanent, the appeal court questioned whether it had the authority to decide on it.
Attorney General Yost then appealed that decision to the Ohio Supreme Court in January which formally accepted the appeal in March but has yet to establish a date to review the case.
Ohio Chief Justice Sharon Kennedy assigned Judge Matthew Byrne to take over for newly appointed Ohio Justice Joe Deters, who recused himself after the abortion clinic plaintiffs argued that he couldn’t rule on the states heartbeat bill ban because he was an original defendant on the case when he was serving as Hamilton County Prosecutor.
The state attorney generals of Mississippi, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Missouri, Louisiana, Montana, Nebraska, South Carolina, South Dakota, Texas, Utah, and West Virginia signed onto the brief.
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Hannah Poling is a lead reporter at The Ohio Star and The Star News Network. Follow Hannah on Twitter @HannahPoling1. Email tips to [email protected]
Photo “Dave Yost” by Dave Yost Attorney General. Background Photo “Woman Taking a Pregnancy Test” by Tima Miroshnichenko.
