The Ohio Supreme Court is considering arguments in a case that could determine Ohioans’ future access to abortion and serve as a bellwether for legal challenges to abortion restrictions in other states.
What exactly is the State Supreme Court considering with this case?
The case the doctors originally filed in September 2022 in Hamilton County was about the constitutionality of the abortion ban. They claimed under the state’s 2011 health care freedom amendment, Ohioans have the right to
abortion. But what the Ohio Supreme Court recently heard arguments on, and is now considering, is whether doctors have the right to bring the case at all, instead of their patients, who would say their rights are being infringed.
Now, legal experts said this is kind of a new argument. Abortion doctors have long been suing on behalf of their patients since Roe v Wade was decided in 1973. They said that’s because pregnant people usually don’t stay pregnant long enough to see the case through.
The Ohio Supreme Court case is also looking at whether the state is allowed to appeal the hold that was placed by the judge in Hamilton County on the state’s abortion ban last October, while its legality is being considered. The state wants to reinstate the ban before there’s a final judgment on the case.
If voters approve State Issue 1 next month, and enshrine the right to abortion in the constitution, doesn’t that make the Supreme Court ruling irrelevant?
If the amendment passes, there’s no longer a question of whether the ban is constitutional. It wouldn’t be constitutional. But regardless of how the voters decide, the question of whether doctors can sue on behalf of their patients still needs to be determined.
For example, if the legislature in the future were to decide to pass an unconstitutional law, the only way to challenge it would be through the legal system. So if the court rules doctors can’t sue, it would fall to patients to bring those suits, said Abby Moncrieff, an associate professor at Cleveland State University College of Law.
She said if the courts determine abortion providers can't sue on behalf of their patients, it would likely severely limit the number of cases nationwide challenging restrictions.
“It's hard for patients to do it," she said. "Any time anybody needs an abortion, it's a traumatic moment, so to expect women in the midst of that trauma to sue the state is a big ask — especially since, in the present climate, they can probably more easily just travel to a different state to get the health care they need.”
When do we expect a court decision?
A decision might come before the election or not. Court watchers said it’s not just the merits of the case that could influence the court. There’s issues of timing because the decision could affect the election. Moncrieff also said there’s the issue of how the justices' actions will be perceived by the electorate. State Supreme Court justices in Ohio are elected so they are accountable to voters.
With either outcome, this court's decision could set the bar for action in other states. Others in conservative states are watching and may decide how to argue their own cases in pursuit of abortion restrictions based on the outcome here.
