Ohio 24-hour waiting period struck down, will await further review
Ohio 24-hour waiting period struck down, will await further review
After ballot initiative passed, state courts decide how expansive abortion rights are.
Ohio women can now get abortions on the same day they want one after a judge struck down a 24-hour waiting period. But the victory is temporary until a final ruling over the law’s constitutionality.
Franklin County Court of Common Pleas Court Judge David C. Young issued a preliminary injunction to block Ohio’s 24-hour abortion waiting period in August. Young said in his ruling that the waiting period also directly or indirectly burdens, penalizes, prohibits, interferes with, and discriminates against providers of abortion care.
“Physicians have an ethical duty to act in accordance with their patients’ best interests,” Young wrote. “The waiting period forces abortion care providers to depart from that duty by denying time-sensitive care for a specified minimum period, putting patients’ health and wellbeing at risk.”
Young wrote that the law increases costs, prolongs wait times, and potentially prevents a patient from receiving the type of abortion they would prefer. He also said it increases the medical risk a patient faces.
Some of the clinics in Ohio have begun to provide abortions without the waiting period, while others have abided by the previous law. Jonathan Entin, a Case Western Reserve University law professor, explained how the litigation could go to the state supreme court.
“Each state Supreme Court essentially gets to decide what standard it will use as a matter of state law,” Entin said. “But I think that we're going to see, if not, in this case, somewhere down the line, the Ohio Supreme Court is going to have to decide that question, which will have significant implications for how abortion regulations will be evaluated in court going forward.”
It remains to be seen how litigation plays out in Ohio, which passed a ballot initiative last year that protected abortion rights within the state constitution up to the point of viability. As we will see unfold in other states, that is just the beginning of the battle to protect abortion rights. Amendments serve as the basis for constitutional protections, but it will be up to the state court systems to see how expansive that right is.
Ohio Attorney General Dave Yost has called for the use of the ‘undue burden’ standard that Planned Parenthood v. Casey established by the U.S. Supreme Court. The new “undue burden” standard came into effect after that case. Under that precedent, states may limit the right to have an abortion or persuade women not to undergo an abortion so long as they do not put an undue burden on the right to obtain one. Further, the Court found that states could not regulate abortion when the woman’s health or life was at risk.
“At some point, the Ohio Supreme Court is going to have to weigh in, not just on the standing question, but also on the standard review question,” Entin said.