Ohio legislators sought to undermine judges over abortion amendment
Some antiabortion lawmakers proposed to strip judges of their review powers to stop abortion amendment from taking effect
Soon after Ohioans voted to enshrine abortion rights in the state constitution, antiabortion activists and legislators suggested that the legislature should pass laws that prevent judges from interpreting the amendment in such a way as to protect abortion access.
Earlier this week, lawmakers had proposed that judges be stripped of judicial review powers insofar as the abortion amendment was concerned. Ohio House Speaker Jason Stephens shot down the idea. But that hasn’t stopped others from developing additional schemes.
Jonathan Entin, a law professor at Case Western Reserve University, said the legal community’s reaction to such efforts has been skeptical because of the principle of the separation of governmental powers.
“There's no guarantee that things won’t take on a life of their own,” Entin said. “But I would say, at this point, that I'd be surprised if this thing actually got traction.”
Even if it did, there would be strong protections for the abortion rights community in both the state and federal constitutions. In addition to the separation of powers concerns, there are also considerations for due process and equal protection under the law.
There is a provision in the Ohio constitution that guarantees people a right to remedy legal wrongs they've suffered. If enacted, this measure would foreclose any legal recourse because the legislature would have occupied would have taken over the whole area.
“This proposal, such as it is, has a pretty dubious future just in terms of where it will go,” Entin said. “And as I said, I think in the unlikely event that it got enacted, I would expect a legal challenge.”
Entin does think the legislature could pass some things that would limit abortion rights, including the banning of Medicaid funds to pay for abortions.
Ohio Republicans changed how judges reached the state Supreme Court. Now, there is a partisan primary and a general election for state judges. They did that because the state generally votes for Republican candidates statewide. There is a Supreme Court makeup of four Republicans and three Democrats on its bench.
“This court already is pretty conservative and has a Republican majority,” Entin said. “So the only question we're talking about next year is whether the majority stays where it is or whether whether it gets bigger.”