Issue 1, Ohio’s new voter-passed amendment that enshrines abortion rights into the state constitution, went into effect Thursday. But while legal scholars say the new reproductive rights amendment is a big deal, doctors are still practicing under the same rules that were in place before the Nov. 7 vote.
Even though legal scholars say laws like the 24-hour waiting period to get an abortion are no longer constitutional, doctors say they say they don’t want to get involved in a legal fight. Dr. Jeanne Corwin, an OB/GYN in Cincinnati, said there hasn’t been clear guidance given to doctors, leaving them in limbo.
“We don’t want to become felons, end up in jail or lose our medical license so we will continue to follow all of the rules and laws that we have always followed,” Corwin said.
Corwin and other doctors said they’ll continue to operate as they are now until a court rules something invalid, or until state leaders make it clear a rule is no longer going to be enforced, or the Ohio State Medical Board offers guidance. And Dr. Marcela Azavedo, president of Ohio Physicians for Reproductive Rights, said it’s important to note the makeup of the medical board.
“One of its major players is Mike Gonidakis, who is the president of Ohio Right to Life,” Azavedo said.
Two doctors who are also Ohio House members, Rep Beth Liston (D-Dublin) and Rep. Anita Somani (D-Dublin), have put forward a bill that would proactively get rid of more than two dozen abortion-related laws that they believe are no longer constitutional. But Republicans have supermajorities in both the Ohio House and Senate.
House Speaker Jason Stephens (R-Kitts Hill) has said he thinks it will be up to courts to determine which abortion laws will remain on the books. And John Fortney, the communications director for Ohio Senate Republicans, said his boss, Senate President Matt Huffman (R-Lima), won’t put forth an effort to change any law as a result of Issue 1.
“Most likely what you know will happen and you can call the speculation, but at some point, somebody will probably try to challenge the legality as part of Issue 1. That won't be coming from the legislature specifically,” Fortney said.
Attorney General Dave Yost, a Republican who opposed the amendment, put out a legal analysis before the election saying certain laws would not be constitutional if Issue 1 passed. But Yost isn’t taking legal actions that would provide cover for doctors who don’t know what to do about laws like the 24-hour waiting period. When asked about it at an event Thursday afternoon, Yost said, existing state laws still stand for now.
“So, we there are a number of statutes that are current that had been challenged prior to issue one that have been stayed. There are other statutes that might be in conflict, but are not necessarily in conflict with Issue 1 that nevertheless touched on the general topic of abortion,” Yost said. “So, the question of any individual matter, I don't believe that there is any pending injunction against the waiting period at the moment.”
Yost said absent a court order, laws should be presumed to be valid until they are challenged.
What’s next?
There are already court challenges and legal experts say there will be more. One case already in court is the state’s ban on abortion after six weeks. That law was put on hold by a Hamilton County Court more than a year ago.
Yost appealed to the state’s highest court, which has heard the case but has asked parties involved to file briefs on where they think that six-week ban stands now that the amendment has passed. A group of abortion opponents that includes Phyllis Schafly Eagles, Janet Folger Porter, Faith2Action, the Ohio Christian Alliance, and several other anti-abortion organizations have filed a supplemental amicus curiae brief to support the state’s appeal. That brief also includes Rep. Beth Lear (R-Galena) and Republican former representatives Candice Keller and Ron Hood. In this brief, the groups and individuals have claimed the new voter-sanctioned amendment would allow infanticide.
“I would be surprised if the amicus brief had any effect on the pending case,” said Steven Steinglass, Dean Emeritus of the Cleveland State University College of Law. But Steinglass said he expects that these same groups will file a fresh lawsuit someplace, possibly in federal court.
In addition to more lawsuits, there’s also the possibility that someone bring another amendment before voters. But legislative leaders have said they don’t think that should happen soon. Gov. Mike DeWine, a staunch opponent of abortion, has also said he thinks the will of the voters should be honored and discourages another amendment vote soon.
In the meantime, as they wait for clear guidance on how to proceed legally, Ohio doctors said they will continue to provide abortion services as they’ve been providing during the past year. And the doctors say they are providing more of them, as they are now seeing additional patients from outside the state.
