Appeals court overturns part of ruling on Ohio's 'heartbeat law'

The First District Court of Appeals ruled on Thursday that when an Ohio judge blocked the state's "heartbeat law," he erred in blocking portions of the law that had not been challenged in a lawsuit. The court's ruling does not lift the injunction on the heartbeat law or the current status of abortion in the state, but does temporarily reinstate some other portions of the law.

Key Takeaways:

• In 2022, an Ohio judge blocked the entirety of an Ohio law protecting most preborn children from abortion.

• Attorney General Dave Yost challenged that ruling, noting that the abortion businesses that sued hadn't challenged the entire law, only the portion prohibiting abortion after the detection of the preborn child's heartbeat.

• The First Circuit Court of Appeals agreed with Yost, reinstating the other portions of the law while sending the case back to a trial court.

• The decision does not impact the current status of abortion in the state.

The Backstory:

In October 2022, Hamilton County Common Pleas Court Judge Christian Jenkins blocked Senate Bill 23, an Ohio law protecting preborn children from abortion after signs of a detectable heartbeat, which usually occurs around six weeks. The law had been challenged by the abortion business Preterm Cleveland (a facility responsible for abortion injuries and at least one woman's death) after Ohio voters passed Issue 1, the Reproductive Freedom Amendment, which enshrined abortion as a constitutional "right."

Following Jenkins' ruling, Ohio Attorney General Dave Yost conceded that the law was likely unenforceable under the amendment, but he appealed Jenkins' decision to block the law in its entirety, since not all portions of the law had been challenged in the lawsuit. According to Courthouse News, those portions include "reporting and documentation requirements for abortion providers and civil and criminal enforcement mechanisms."

As Ohio Right to Life explained, "Judge Jenkins took the liberty of striking down the entire law despite the well-established principle of severability. Under this principle, if one section of a law is found unconstitutional, the rest still stands."

The Details:

In the opinion issued last week, Judge Candace Crouse determined that Jenkins erred when he blocked all portions of the law.

“Statutory provisions whose constitutionality have not been challenged — like the disputed provisions here — are presumptively constitutional, and should continue to be presumed so for purposes of a severability analysis,” she wrote. “A court’s power of constitutional review comes into play only as an incident of the need to resolve a dispute between parties.”

READ: ’98 beats per minute’: Science sheds light on the heartbeat of the preborn child

The ruling does not change the fact that abortion remains legal in the state. Jessie Hill, an attorney for the abortion business Preterm Cleveland, praised the decision.

“We’re pleased that the appeals court correctly kept the injunction in place as to the six-week ban, which the state agrees is unconstitutional under the Reproductive Freedom Amendment. Abortion remains legal in Ohio, and we will continue to fight to ensure that it remains legal and accessible and that the promise of the Reproductive Freedom Amendment is fulfilled,” she said.

Bethany McCorkle, spokesperson for the Ohio Attorney General’s Office, was thankful that the court recognized that proper procedure must be followed in these pivotal cases.

“We are pleased to see the appeals court agree with what we said all along — it is important for courts and parties to follow procedural rules. Here, proper procedure was not followed, so the appeals court ordered a do-over in the trial court,” she said.

Carrie Snyder, Executive Director of Ohio Right to Life, also expressed appreciation for the ruling and noted that it may impact a provision allowing abortion-minded women to first see an ultrasound of their child. The heart begins beating about 21 days after fertilization.

“We are thankful that Attorney General Dave Yost and his team saw that Jenkins had erred in his ruling and put the effort into successfully challenging that decision. While it’s sad that our law protecting babies as soon as a heartbeat is detected cannot be enforced, we are hopeful that other sections of SB23 can now take effect, including the provision allowing the pregnant woman to have the option to view the ultrasound of her baby before an abortion takes place,” Snyder said. “Statistics show that a simple ultrasound showing a moving, growing baby—not just some clump of cells—can often change the mind of mothers who initially seek an abortion.”

What's Next:

The court's ruling sends the case back to a trial court, where the remaining provisions of the law will be discussed.