Abortion in Ohio: Judge issues preliminary injunction against six-week ban

CINCINNATI (WCMH) -- An Ohio judge indefinitely halted the enforcement of the state's six-week abortion ban Friday.

Hamilton County Common Pleas Court Judge Christian Jenkins granted abortion providers a preliminary injunction in their lawsuit against Ohio’s Senate Bill 23, commonly known as the heartbeat law, which bans the procedure once fetal cardiac activity is detected and provides no exceptions for rape or incest.

In a rebuke of lawmakers and anti-abortion groups seeking to uphold the six-week ban, Jenkins’ ruling extends a temporary restraining order he issued against the law on Sept. 14, deeming it a violation of the Ohio Constitution. Jenkins went further, calling abortion "undoubtedly healthcare."

"Does a law that prevents a cancer patient from getting lifesaving treatment infringe on those rights? The answer is obviously it does,” Jenkins said.

Delivering his ruling from the bench, Jenkins said Ohio's Constitution "clearly provides more expansive rights" in the areas of privacy, safety and healthcare -- including abortion -- than does the U.S. Constitution. Vague protections included within , like life, liberty and the pursuit of happiness, "were purposefully left to gather meaning from experience."

Ohio Attorney General Dave Yost, who successfully petitioned a judge to lift an earlier injunction blocking the heartbeat bill, disagreed with Jenkins' interpretation.

“I'm confident of my position that the Ohio Constitution does not contain the right to abortion," Yost said. "We'll see what the Supreme Court says someday once this process is done.”

Abortion will remain legal up to 20 weeks of a pregnancy, according to ACLU of Ohio attorney Jessie Hill. That could change in coming months, however, depending on how the lawsuit proceeds up the chain of command in court.

In the weeks post-Roe, a national audience targeted the state’s six-week abortion ban after a 10-year-old rape survivor who was six weeks pregnant traveled outside Ohio to obtain an abortion – a case Jenkins cited as part of his reasoning to halt the bill’s enforcement.

“This child was a victim of crime who should have had access to clearly needed health care in the form of abortion in her community,” Jenkins wrote. “S.B. 23 clearly discriminates against pregnant women and places an enormous burden on them to secure safe and effective health care such that it violates Ohio’s Equal Protection and Benefit Clause and is therefore unconstitutional.”

The decision in Hamilton County Common Pleas Court marks the latest in a series of legal challenges to the state law. A federal court blocked enforcement of the heartbeat law three months after it passed in April 2019 – finding it unconstitutional in Ohio – but that changed after Roe v. Wade was overturned in June. 

Previously, Yost has said “there will no doubt be an appeal.” Other Republican lawmakers say “it is just a bump in the road.” Post-Roe, Yost successfully petitioned the federal court to dissolve the injunction, and though the law saw challenges from Ohio abortion clinics, was upheld by the state supreme court in July.

“With this holding, the Court extricated itself from having to repeatedly decide policy matters that the Constitution leaves to the States and the political branches,” Yost wrote in his response to the state supreme court’s ruling.