FACTS:
Following the U.S. Supreme Court’s June 24, 2022 decision in Dobbs v. Jackson’s Whole Women’s Health, Ohio’s most restrictive abortion ban went into effect. S.B. 23, the “heartbeat ban” criminalizes abortions after about 6 weeks, a point so early in gestation that most pregnant people do not even realize that they are pregnant. Approximately 90% of abortions performed in Ohio occur after that point. This law was passed and signed in 2019, but was enjoined by our federal lawsuit in the Southern District of Ohio. Our federal court injunction had relied on the Roe holding that the federal constitution’s 14th Amendment Due Process Clause protects the right to abortion up until the time of fetal viability.
LEGAL THEORY:
We sued seeking a writ of mandamus. A writ of mandamus can be an appropriate remedy in the Ohio Supreme Court where the Court finds that the challenged statute affects “fundamental” or “core” rights of Ohio citizens and “demand[s] an early resolution.”
The right that formed the basis for the mandamus action was found in the Ohio Constitution, which provides broad protections for individual liberties that are independent of the United States Constitution. Our state constitution’s protections of fundamental rights – including the right to abortion – are more expansive than those of the U.S. Constitution. Specifically, we relied on the Ohio Constitution’s Due Course of Law Clause, which provides that courts will redress injury to every person for injury done to his land, goods, person, or reputation. In contrast, the United States Constitution’s analogous provision, the Due Process Clause, speaks in terms of “life, liberty, or property,” so the Ohio Constitution has been seen to confer a more explicit right to personal autonomy. Additionally, the Ohio Constitution’s Health Care Freedom Amendment, which has no analogue in the U.S. Constitution, reinforces the argument that the Ohio Constitution’s substantive due process protection extends to a person’s fundamental right to decide whether to obtain an abortion free of government interference. Another source of protection of the right to abortion lies in the Ohio Constitution’s guarantee of Equal Protection. Ohio’s Equal Protection clause is also interpreted to provide greater protections than its federal counterpart.
STATUS:
We filed this lawsuit on June 29, 2022 in the Ohio Supreme Court along with a request for emergency stay of enforcement of S.B. 23. The Court ordered a response to our motion on June 30. The state opposed the motion, but several defendant prosecutors did not oppose. A group of academics filed an amicus brief in support. However, on July 1, the Court denied the emergency stay. Over the next few months, several more amicus briefs were filed in support of the writ, and one against, but there was no action from the Court. After the passage of several months, access to abortion in Ohio became even more difficult as neighboring states enacted bans, and least one Ohio clinic was imminent danger of closing. Given the increasing gravity of the situation and no action from the Ohio Supreme Court, we finally applied on September 2 for a dismissal of the case so that we could refile in a court of common pleas. The dismissal was granted on September 12.
