Parts of law that supported Ohio's six-week abortion ban struck down by judge

A Franklin County judge yet again ruled other provisions of a law that included Ohio’s former six-week abortion ban can not be enforced.

The ban on abortions at six weeks, also called the “Heartbeat Ban,” was already blocked from enforcement, which the Ohio Attorney General’s Office chose not to fight on appeal. As Franklin County Common Pleas Judge Christian Jenkins put it in his newest court decision, the ban on abortion when cardiac activity is detected “has gone the way of the dodo.”

But Jenkins’ newest court order added to the already struck-down abortion ban, saying all the measures of the Senate bill that were written alongside the ban are unconstitutional and can’t be used individually.

The six-week abortion ban has been a point of contention in the state for several years, partly because it’s been in court essentially since it was enacted in 2019. When the first lawsuit came about, Roe v. Wade’s legalization of abortion nationwide was still in effect. But once the U.S. Supreme Court overturned the decision in 2022, Ohio Attorney General Dave Yost quickly moved to get the law out of its legal limbo, which a federal court agreed to do.

A few months later, the law was back in court, first with the Ohio Supreme Court, and then in Franklin County Common Pleas.

Jenkins ruled against the state in Oct. 2022, and the state appealed to the Ohio Supreme Court.

But as the state’s highest court considered the appeal, a constitutional amendment protecting abortion rights was passed by 57% of Ohio voters in 2023. The Ohio Supreme Court dismissed the appeal due to “a change in the law,” and sent the case back to state court.

This time, Jenkins permanently blocked most of the law, saying one part of the law was unconstitutional, and “most of the provisions … are unconstitutional in their own right,” adding that the provisions of the bill couldn’t be separated from each other.

When the state appealed that decision to the First District Court of Appeals, the Ohio Attorney General’s Office said they wouldn’t fight the striking down of the six-week abortion ban, but argued the other elements of the law should remain viable.

Included in the law were requirements that medical professionals report tests for cardiac activity to the Ohio Department of Health, along with any actions they believe are exceptions to the six-week ban.

The appellate court ruled that the Franklin County court had the authority to block multiple statutes in the same bill, against the state’s arguments. But it upheld the attorney general’s claim that the state court should not have considered the constitutionality of the other provisions of the six-week ban law before considering whether they could stand on their own as separate laws.

With the case returning to Franklin County, Jenkins now had to rule on whether the provisions that were alongside the six-week abortion ban could be used as their own measures.

In his Oct. 29 decision, Jenkins found that the other parts of the law are “the same species” as the six-week abortion ban, “and for that reason, they cannot survive.”

“These measures were passed alongside the six-week ban to make it difficult, or impossible, to obtain abortion care in Ohio by placing providers at risk of criminal prosecution as well as professional and financial ruin,” Jenkins wrote.

The judge went on to say the other provisions “were enacted to enforce, document, and define the six-week ban,” and without them, the other measures can’t be read as the legislature wrote them.

“They require every physician who performs an abortion to record whether the patient’s health was a reason for it, and they make a physician who fails to keep that record subject to discipline by the State Medical Board,” Jenkins wrote.

If the provisions were allowed to stay in place, Jenkins said physicians could still face prison time for conducting abortions “to which the patient now has a constitutional right.”