Columbus, Ohio — Ohio’s most far-reaching law restricting abortion was struck down Thursday by a county judge who said that last year Voter-Approved Amendment Enshrining Reproductive Rights renders the so-called heartbeat law unconstitutional.
The application of the 2019 law banning most abortions once cardiac activity is detected – from six weeks of pregnancy, before many women know they are pregnant – had been suspended pending the challenge before the judge of Common Pleas of Hamilton County, Christian Jenkins.
Jenkins said that when the United States Supreme Court overturned Roe v. Wade and returned power over the issue of abortion to the states, “the Ohio attorney general clearly didn’t get the memo.”
The judge said Republican Attorney General Dave Yost’s request to leave all but one provision of the law intact even after a majority of Ohio voters passed an amendment protecting the right to abortion before viability “dispels the myth” that the high court’s decision simply gives states power over the issue.
“Despite the adoption of a broad and strong constitutional amendment, in this case as in others, the State of Ohio does not seek to maintain the constitutional protection of the right to abortion, but to diminish it and to limit it,” he wrote. Jenkins said his decision respected voters’ wishes.
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Yost’s office said it was reviewing the order and would decide within 30 days whether to appeal.
“This is a very lengthy and complex decision that covers many issues, many of which are questions of first impression,” the office said in a statement, meaning they were never decided by a court before.
Jenkins’ ruling is part of a lawsuit that the ACLU of Ohio, Planned Parenthood Federation of America and the WilmerHale law firm filed on behalf of a group of abortion providers in the state, the second round of litigation filed to challenge the law.
“This is a momentous decision that demonstrates the power of Ohio’s new reproductive freedom amendment in practice,” said Jessie Hill, cooperating attorney for the ACLU of Ohio, in a press release. “The six-week ban is blatantly unconstitutional and has no place in our law.”
An initial lawsuit was filed in federal court in 2019, where the law was first blocked under the landmark Roe v. Wade of 1973. It was briefly allowed to take effect in 2022 after Roe was overturned. Opponents of the law then turned to the state court system, where the ban was once again suspended. They argued that the law violated protections in the Ohio Constitution that guarantee individual liberty and equal protection, and that it was unconstitutionally vague.
After his predecessor twice vetoed the measure citing Roe, Ohio Republican Gov. Mike DeWine signed the 2019 law once nominations by then-President Donald Trump , solidified the Supreme Court’s conservative majority and raised hopes among abortion opponents.
The Ohio litigation proceeded alongside a national upheaval over abortion rights that followed the Dobbs decision that overturned Roe, including the push for constitutional amendments in Ohio and a host of other states. Issue 1, the amendment passed by Ohio voters last year, gives every person in Ohio “the right to make and carry out their own reproductive decisions.”
Yost acknowledged in court filings this spring that the amendment made Ohio’s ban unconstitutional, but sought to maintain other elements of the 2019 law, including some notification and reporting provisions.
Jenkins said keeping those elements would have meant subjecting doctors who perform abortions to criminal charges, fines, license suspensions or revocations and civil suits for wrongful death — and requiring patients to visit twice in person to their provider and wait 24 hours for the procedure and for their abortion to be recorded and reported.
