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What’s next now that Ohio’s six-week abortion ban has been ruled unconstitutional?

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COLUMBUS, Ohio (Statehouse News Bureau) — Ohio’s six-week abortion ban is unconstitutional, after voters approved an amendment guaranteeing abortion access and reproductive rights last year. In that ruling, Hamilton County Judge Christian Jenkins said the ban can’t be enforced. But the group that brought that suit against the state in the first place is signaling the battle over the ban may not be over.

The Ohio Supreme Court building from the outside
The Ohio Supreme Court building in Columbus. [Daniel Konik | Statehouse News Bureau]
ACLU of Ohio Legal Director Freda Levenson says the court has ruled the part of the law that bans abortion when fetal cardiac activity is detected – which is as early as six weeks into pregnancy – cannot stand under the new reproductive rights amendment passed in 2023.

“As to that, we can stick a fork in it. It’s done,” Levenson said.

But Levenson said under the Hamilton County Common Pleas Court ruling, there are ancillary issues in that law that the state might be able to appeal.

“There were other provisions in that same statute – some related to the requirement that physicians check for cardiac activity when a patient comes in for an abortion,” Levenson said. “Another provision was one that required physicians to provide certain state-mandated information to a patient. Another was a state requirement that a physician provide a written record of the abortion stating that there was no fetal activity or there is fetal activity.”

Levenson said those issues could go back through the court system and may end up in the Ohio Supreme Court at some point. And for those concerned about abortion, that makes the three races for Ohio Supreme Court justices on this fall’s ballot important.

In a written statement, Attorney General Dave Yost’s office said it is reviewing the court’s order.

“This is a very long, complicated decision covering many issues, many of which are issues of first impression. Under the Rules of Appellate Procedure, the State has up to thirty days to determine next steps,” the statement read.

Court may not be the only solution

Senate Bill 23 was signed in 2019, but didn’t go into effect until after the US Supreme Court overturned a federal right to abortion in 2022. The law was put on hold again when abortion providers sued in Hamilton County Common Pleas Court.

Levenson said there’s also the possibility that state lawmakers could just take provisions of SB 23 that were turned down and put them into law at some point in the future.

At this point, there doesn’t appear to be an effort to put provisions of SB 23 into new legislation. But that could change at the end of this year when this legislature wraps up its work in a lame duck session.