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Q&A: Understanding the legal argument behind Ohio abortion clinics' suit to halt 'heartbeat' law

A demonstrator holds a "Keep abortion legal" sign in Cuyahoga Falls.
Ryan Loew
Ideastream Public Media
A demonstrator outside the Northeast Ohio Women’s Center in Cuyahoga Falls, two weeks before the U.S. Supreme Court overturned the landmark Roe v. Wade decision legalizing abortion.

Ohio's abortion clinics, Planned Parenthood and the American Civil Liberties Union (ACLU) have sued to block Ohio's ban on abortions after a fetal heartbeat is detected.

The ban went into effect last Friday after the U.S. Supreme Court overturned Roe v. Wade and eliminated a constitutional right to an abortion. But this lawsuit argues that Ohio's constitution still preserves that right.

Ideastream Public Media's Amy Eddings spoke with one of the attorneys representing the plaintiffs, Jessie Hill, a law professor at Case Western Reserve University and a cooperating attorney for the ACLU.

The lawsuit argues that Ohioans still have a right to an abortion under the Ohio Constitution's due process clause. The U.S. Supreme Court, in its decision overturning Roe, argued against seeing any unenumerated right to an abortion in the Fourteenth Amendment's due process clause. You think the Republican majority on the Ohio Supreme Court will see this differently?

Jessie Hill, JD, is Associate Dean for Research and Faculty Development and Judge Ben C. Green Professor of Law at Case Western Reserve University in Cleveland, Ohio.
Case Western Reserve University
Prof. Jessie Hill is Associate Dean for Research and Faculty Development at Case Western Reserve University in Cleveland, Ohio.

Well, we think that our Ohio Supreme Court has a long tradition, actually, of interpreting the Ohio Constitution to be more protective of individual's constitutional rights than the U.S. federal Constitution is.

It has done this in many contexts, including free exercise of religion, right to bear arms, private property rights. And, you know, we believe that this right, too, is very clearly protected by the Ohio Constitution, which does have a clause recognizing that there are certain inalienable rights, even if they're not enumerated in the Constitution.

The lawsuit also sees an avenue for blocking the abortion ban through what's known as the Health Care Freedom Amendment. That was a successful ballot initiative in 2011 that preserves an Ohioan's freedom to choose health care and health care coverage. It exempts Ohioans from national health care mandates like those under Obamacare. How do you legally, in your legal argument, see this as extending to abortion?

Well, we see this amendment as embodying another, yet another principle in the Ohio Constitution that supports our legal case. So we think it's pretty clear that Ohioans overwhelmingly favor a right to health care freedom, and they actually enshrined that right in our Constitution. And we believe that that supports our reading of Ohio's due process clause to cover health care privacy in the context of reproductive health care.

So, I know that you represent a clinic that I visited the day that the decision came down from the U.S. Supreme Court — the Northeast Ohio Women's Center in Cuyahoga Falls. Do you know from that clinic and others what effect the "heartbeat" ban has had on their clients? How many appointments they've had to reschedule, for example?

So, I can't say for each individual clinic what the impact, the numbers have been, but I can say statewide it has been literally hundreds, hundreds. And the impact has been absolutely devastating.

I mean, I've heard story after story about patients who break down sobbing when they find out they can't get the care that they needed. They talk about suicide. They beg to come in anyway, in the vain hopes that there might not be fetal cardiac activity on the ultrasound. It has been absolutely horrible.

And, you know, while patients can still travel out of state, a lot of folks don't have the means to do that. And so, some people are — if the Supreme Court doesn't step in, if the Ohio Supreme Court doesn't step in — some people are really going to find themselves forced to carry unwanted pregnancies to term.

Have you asked the court, and has the court granted, any injunction to halt the "heartbeat" law while this case is considered?

We did. We filed the lawsuit early yesterday (Wednesday) morning. We asked the court for an immediate stay on the "heartbeat" law to let it be not in effect while the court considers our lawsuit. The court has ordered the state to respond to that emergency motion by noon today (Thursday), and we expect that the court will act fairly quickly.

You mentioned the state. Ohio Attorney General Dave Yost, in a statement, argued you should not have filed this brief in the Ohio Supreme Court. He said that's akin to starting a race at the finish line. What's your reasoning for going straight to the state's highest court?

Well, this is absolutely the sort of case that the Ohio Supreme Court does have jurisdiction to hear. It's a special kind of case called a writ of mandamus that the Ohio Supreme Court can hear. And the reason we went directly to the Ohio Supreme Court is that we need, and our clients and Ohioans as a whole, need immediate statewide relief.

If this case were to begin in a lower court in one of the counties of Ohio, you know, there could be inconsistent rulings across the state from different counties. There could be sort of temporary measures that then get overturned and there's no certainty.

This is an issue of pressing public importance for the entire state of Ohio, and only the Ohio Supreme Court can issue a statewide ruling like that.

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