Ohio voters just passed abortion rights protections. When and how they take effect is before the courts

Ohio’s new constitutional protections for abortion access and other reproductive rights take effect Dec. 7, a month after voters resoundingly passed them. How and when their effects will be felt remain unclear.

Existing lawsuits related to abortion are again moving through the courts now that voters have decided the issue, raising questions about implementation.

The amendment declaring the right to “make and carry out one’s own reproductive decisions” passed with a strong 57% majority. It was the seventh straight victory in statewide votes for supporters of abortion access nationally since the U.S. Supreme Court overturned Roe vs. Wade last year.

But the amendment voters approved Nov. 7 did not repeal any existing laws in Ohio, prompting some antiabortion activists to step up pressure on elected Republican officials to extend their efforts to halt, delay or significantly water it down.

“A lot of that hard work of figuring out what state laws are inconsistent with the amendment and what state laws can remain, does tend to devolve to the courts,” said Laura Hermer, a professor at Mitchell Hamline School of Law in St. Paul, Minn., who studies access to healthcare. “It’s difficult to imagine that the Legislature will say, ‘All right, you win. We’re going to repeal the heartbeat ban’ and so forth.”

The state Legislature is controlled by Republicans whose leaders opposed the November ballot amendment, which was known as Issue 1. Republicans also have a 4-3 majority on the Ohio Supreme Court, which is the final judge of state constitutional questions. Some of the GOP justices have taken actions or made statements over the years that have caused abortion rights groups and ethics lawyers to question their objectivity on the subject.

Minority Democrats in the Ohio House announced legislation two days after the election aimed at avoiding a piecemeal approach to implementing the amendment. Among other steps, they called for repealing the state’s 24-hour waiting period for abortion and its ban on most abortions after so-called cardiac activity is detected in an embryo, which is around six weeks.

“There are over 30 different restrictions in place,” said Democratic state Rep. Beth Liston, a physician and co-author of the Reproductive Care Act. “And I think that it is important that we don’t require citizens to go to court for every restriction, and, quite frankly, that we don’t let harm occur in the interim.”

The House Democratic leader, Allison Russo, was careful not to criticize the high court, which holds sway over the fate of those laws.

“My hope is they will uphold the rule of law and the constitution,” she said.

Chief Justice Sharon Kennedy last week ordered the legal teams for the state and a group of abortion clinics to tell the court how they believe the measure’s passage has affected a case involving the ban on most abortions once embryonic cardiac activity is detected, which has been on hold since October 2022.

A day after voters passed the amendment, U.S. District Judge Michael Barrett made a similar request of the parties in a long-running federal lawsuit challenging a set of state restrictions on abortion providers’ operations. The restrictions included a requirement that clinics obtain agreements with a nearby hospital for emergency patient transfers, as well as a prohibition against public hospitals entering those agreements.

At least three other Ohio abortion laws also have been on hold in the courts.

Passing legislation to bring Ohio law in line with the new amendment has been a nonstarter with GOP lawmakers, who mostly opposed it and took extraordinary steps to defeat it.

With a primary election in their Republican-heavy districts only months away, the party’s lawmakers are facing fierce pressure from antiabortion groups to go in the other direction to pass laws countering the amendment or to use their supermajorities to strip courts of their power to interpret it.

“The [Ohio] Constitution specifically says reining in out-of-control courts is the legislators’ job,” argues a video recently released by Faith2Action, an antiabortion group. “So let’s call on the legislators to do their job, to use their constitutionally granted right to represent us and to keep pro-abortion judges from repealing Ohio laws based on an amendment that doesn’t even mention a single Ohio law.”

The video argues that the “right to life” created in Ohio’s constitution is inalienable and that the U.S. Supreme Court’s decision overturning the nationwide right to abortion punted the issue to “the people’s elected representatives.”

But Justice Brett M. Kavanaugh, a Trump appointee, wrote in his concurring opinion in that ruling that state constitutional amendments were among the avenues for deciding the future of abortion access.

“Moreover, the Constitution authorizes the creation of new rights — state and federal, statutory and constitutional,” he wrote. “But when it comes to creating new rights, the Constitution directs the people to the various processes of democratic self-government contemplated by the Constitution — state legislation, state constitutional amendments, federal legislation, and federal constitutional amendments.”

Republican Ohio House Speaker Jason Stephens has said that for now, legislation targeting the power of state courts will not be considered. And GOP Senate President Matt Huffman has ruled out pushing for an immediate repeal of Issue 1, as some have suggested, saying nothing like that should be tried, at least in 2024.

How Ohio Atty. Gen. Dave Yost will proceed is being closely watched as well.

In a legal analysis of Issue 1 that the Republican published before the election, Yost said the amendment created a new standard for protecting abortion access that “goes beyond” Roe vs. Wade.

“That means that many Ohio laws would probably be invalidated ... and others might be at risk to varying degrees,” he wrote.

Hermer, the law professor, said that his statement is convenient for lawyers fighting to implement the constitutional amendment, but that such an analysis isn’t legally binding for Yost.

“He doesn’t necessarily have to stand down, but, of course, having already said that, it’s going to make it a bit more difficult to hold those sorts of positions,” she said.