Ohio reproductive rights movement waits to see how court battle plays out

Legal questions over how expansive a constitutional amendment protecting abortion is will be answered by a judiciary that has recently been reshaped as conservative.

Abortion workers in Ohio are waiting to see how a legal battle over a six-week ban will play out in a recently reshaped state court system, even with a constitutional amendment passed.

The State Attorney General Dave Yost must file paperwork by the end of February to challenge a lower court ruling that nullified the ban. Yost has indicated that he wants parts of the law to remain in effect while acknowledging that the 2023 ballot initiative has rendered some of it moot. Jonathan Entin, a retired professor from Case Western University School of Law, spoke to me about how this will play out.

“He's trying to thread a needle here that ought to be really difficult to thread,” Entin said.

As we have and will see in other states, antiabortion officeholders want the constitutional amendment protecting abortion rights to be interpreted as narrowly as possible when it’s time to review the existing abortion laws under the new protections.

Conservative attorney generals and legal scholars have pointed to how abortion was adjudicated at the federal level when Roe was the law of the land. Even then, when it was guaranteed as a right, the Supreme Court would chip away at it and uphold restrictions and regulations that limited abortion rights and made it so expensive to operate that clinics went out of business. Why can’t state judges take the same approach now? That’s their rhetorical question.

Yost has also argued that the patients are the only people with standing or the right to challenge the laws. In Texas, the state supreme court ruled that doctors were the only ones that had standing. This inconsistency with that aspect is troubling and needs to be remediated by a higher federal court.

“He's hoping for a broad ruling on standing, and that these other arguments that he's making are kind of fall back to say, ‘If I'm going to lose on standing, then let's try to find some other way to get the court to restrict the scope of this amendment,” Entin said.

In the last election, Republicans swept the state supreme court races. Now, the makeup is six conservatives to one liberal judge.

“If the Supreme Court that we had in 2021 and 2022 were still there, I think the court would be narrowly divided,” Entin said. “But it might take a broader view of the reproductive rights amendment than the current court will.”