Ohio law banning nearly all abortions will remain blocked as state constitutional challenge moves forward, judge rules

An Ohio law banning nearly all abortions will remain blocked while the state’s constitutional challenge continues, a judge said Friday. The ruling will allow termination of pregnancy up to the 20th week of pregnancy to continue for the time being.

Hamilton County Common Pleas Judge Christian Jenkins issued the preliminary injunction from the bench after a daylong hearing where court guards screened spectators and an abortion provider testified she wore a Kevlar vest out of fear for her safety.

In impassioned remarks announcing his decision, Jenkins slammed the state’s arguments that the Ohio Constitution never mentions abortion and therefore does not protect the right to one. He said that a right need not be named to be protected.

“This court has no difficulty holding that the Ohio Constitution provides a fundamental right to all Ohioans to privacy, procreation, bodily integrity, and freedom of choice in health care decision-making that includes the right to abortion.” , he said.

He said the state failed to show that the ban on most abortions after fetal heart activity is detected is narrowly tailored enough not to infringe on those rights. Instead, Jenkins said, the law is written “to almost completely eliminate the rights of Ohio women. It’s not narrowly tailored, not even close.”

The state is expected to appeal.

The law, signed by Republican Gov. Mike DeWine in April 2019, bans most abortions after the first detectable “fetal heartbeat.” Heart activity can be detected as early as six weeks into pregnancy, before many women know they are pregnant. The law had been blocked through a legal challenge, which briefly took effect when the landmark 1973 Roe v. Wade decision overturnedand was then placed on hold again in court.

Jenkins’ decision followed a day of testimony that differed little from existing social and political arguments for and against abortion and, he later said, surprised him by its failure to break new ground.

Ohio Right to Life President Michael Gonidakis said his organization was “saddened, but not surprised” by the decision.

“Abortion clinics literally shopped to get the result they wanted. This is a time of the year for the pro-life movement, and we are confident that the Ohio Supreme Court will overturn this decision,” Gonidakis said in a statement. “Nowhere in the Ohio Constitution is there a right to abortion.”

Abortion clinic attorneys presented witnesses who emphasized that abortion is safe, necessary health care, and that pregnant Ohioans seeking the procedure were devastated when the law was briefly enforced after the U.S. Supreme Court overturned the landmark case Roe v. Wade in June.

Dr. Steven Ralston, a maternal-fetal medicine physician at the University of Maryland, said the limited exceptions included in Ohio’s so-called “heartbeat” law are unclear and troubling for doctors, who face losing their medical licenses or facing charges felony for misrepresentation.

He testified that he observed more risks to patients in pregnancy than in abortion.

“I’ve seen many, many more patients end up in intensive care units after having a baby compared to women who had an abortion,” Ralston said in a video deposition. “In fact, I can’t even remember a time when I’ve seen a woman end up in a care facility after an abortion.”

Attorneys for the state brought into the witness stand Dr. Dennis Sullivan, a bioethicist at Cedarville University, a private Baptist institution, who testified that human life begins at conception and is “scientifically not up for debate.”

He said the Ohio law is “consistent with good medical practice” and that he considers performing abortions under the limited exceptions — which include the mother’s life or the risk of extensive damage to internal organs — to be medically ethical. The law contains no exemption for fetal abnormalities, which Jenkins questioned.

Jenkins asked Sullivan a series of pointed questions after he was cross-examined, particularly about the view he expressed in testimony that his views on the nature of human life and the immoral nature of terminating pregnancies in non-medical emergencies should be imposed on the rest.

“My question is what uniquely allows you, or someone else uniquely, to make that judgment better than the person whose rights we’re being asked to limit, whose autonomy we’re being asked to take away?” Jenkins asked.

Sullivan responded with an example of a medical situation where a sick woman’s autonomy can be sacrificed when she arrives at a hospital in need of life-saving care. He also pointed to Ohio laws beyond abortion that limit citizen autonomy, such as the state’s ban on assisted suicide.

The plaintiffs’ witness Dr. Steven Joffe, a faculty member in the Department of Medical Ethics and Health Policy at the University of Pennsylvania, testified that Sullivan’s position gave the moral status of a fetus “almost absolute weight” over the pregnant patient.

Jenkins said he was most impressed by the testimony of Dr. Michael Parker, a gynecologist from Colombo, whose testimony revealed a jumble of hypothetical, sometimes conflicting judgments that he believed would make sense under the law. The judge said it proved to him that it is “extremely difficult to be a practitioner in the state of Ohio under this law.”

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