How legal uncertainty over abortion is affecting Ohioans seeking them

Ohio’s nine facilities providing surgical and medication abortions are open because of a court ruling earlier this month. That's when a Hamilton County Common Pleas Court put the law that bans abortion at the point fetal cardiac activity is detected, about six weeks into a pregnancy, on hold until Oct. 12.

The abortion ban had gone into effect on June 24, just hours after the U.S. Supreme Court overturned Roe v. Wade.

Now that Ohio's ban, which a federal court had put on hold shortly after it was signed into law in 2019, has been temporarily lifted, it's clear the only thing that's certain is more uncertainty when it comes to abortion in Ohio.

Shortly after abortion was banned in Ohio in June, the story about a 10-year-old Ohio girl pregnant by rape who had to travel to Indiana for an abortion made headlines. But court filings in Hamilton County Common Pleas Court showed she's not alone.

A 16-year-old girl who was the victim of incest also left Ohio to get an abortion this summer while the ban was in place, forcing investigators in that case to drive out of state to retrieve the tissue to submit for testing at a crime lab. Affidavits filed by a doctor at an abortion clinic challenging Ohio's ban showed there are two dozen situations outlined in the court documents where women and girls were under extreme duress after the six-week ban was put into place.

Ohio’s Republican Attorney General Dave Yost, the defendant in that case, admitted the state’s abortion ban could have been constructed better to make exceptions more clear, but said it’s part of the discussion around this issue.

“For the first time in 50 years, the vast majority of people that don't want to think about this are confronted with what are what is the morality of the thing and what should be society's response. We're going to have those conversations. It's an atrophied debate, and it's past time for us to pick it up and and go there," Yost said.

The Ohio Department of Health’s 2020 Ohio Abortion Report showed 571 abortions were performed on girls 17 years old and younger. Not all were due to rape or incest. But since Ohio's age of consent is 16 years old, it's probable that legal issues were involved in many of those pregnancies that resulted in abortions.

[Ohio Department of Health /  Ohio Department of Health]

The Hamilton County Common Pleas Court filing said two pregnant women discovered they had cancer but couldn’t get immediate treatment for that illness while they were pregnant. And because the state's abortion ban was in place at the time, they couldn't get abortions either. Their cancer treatment had to be delayed.

The court filing detailed other cases of women who were ill, had ectopic pregnancies that developed in Fallopian tubes or had fetuses with fatal abnormalities. And while none of the women died from the lack of an abortion, the court filing said they suffered irreparable harm in some of those cases. One high school senior was so ill that she couldn't continue her education to graduate.

Gabe Mann with Pro-Choice Ohio said he's not surprised by the hardships outlined in this court filing.

“This happens all of the time in communities across Ohio. This happens in every one of Ohio’s 88 counties. Yes, here we have a few examples in this court case but they are not extreme, they are not unusual. They are very, very common,” Mann said.

Ohio Right to Life president Mike Gonidakis maintained the new law is constitutional. He said some of the cases outlined in the court filing, such as ectopic pregnancies, qualify for exemptions under the abortion ban now on hold.

And Gonidakis said if patients are enduring hardships because doctors won’t perform abortions that are allowable exceptions, he says it’s up to patients to file a complaint with the state medical board, which he sits on.

“I would encourage any patient who doesn’t receive proper according to Ohio law and Ohio revised code to file a complaint with the state medical board. And then the state medical board will then do an investigation on the doctor for not doing something that they are legally allowed to do," Gonidakis said.

Ohio's ban has two exceptions: to save the life of the woman, and a medical emergency with the pregnancy that could affect the long-term impairment of a bodily function. But the court filing cited doctors who said the law is vague and flawed.

The situations outlined in the court case, and the arguments saying Ohio’s constitution allows a right to an abortion, were enough to convince the judge in the Hamilton County to put the state ban on hold last week.

Planned Parenthood of Southwest Ohio president and CEO Kersha Deibel said the Cincinnati area clinic was ready for the ban to be lifted.

“The moment that we heard the news, we moved with a sense of urgency," Deibel said.

Deibel said the clinic she represents has been busy. She said it not only is seeing an increase in Ohio patients who have had to delay abortions, but is also seeing an influx of patients from surrounding states, even as far away as Georgia. Still, she said they clinic is prepared for the increased demand.

"We saw this moment coming for years so for years, we have been partnering and working very closely with our regional partners. We have four patient navigators who are supporting and making sure that patients, no matter what, can be seen in the places they need to get here so we are staffed here in Southwest Ohio and ready to see patients as they need," Deibel said.

Deibel said her clinic has extended its hours and even opened this past Sunday, trying to keep up with the higher-than-normal demand. And she said she knows there could be a day when the state’s ban is reinstated.

The Hamilton County Judge has put it on hold on the ban until Oct. 12 while he examines its constitutionality. Freda Levenson, legal director with the ACLU of Ohio, said she expects the judge will be looking at all of the evidence in the case.

“The case will be moving forward and the judge will be making a determination as to the ultimate answer – does the Ohio constitution protect the right to abortion in our state?" Levenson said.

Regardless of what happens in that court, both Levenson and Gonidakis know where this fight is ultimately headed – to the Ohio Supreme Court, where Republican justices constitute the 4-3 majority.

Read the Hamilton County Common Pleas Court ruling here.

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