Ohio attorney general concedes state abortion ban unconstitutional after recent referendum enshrining abortion access News
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Ohio attorney general concedes state abortion ban unconstitutional after recent referendum enshrining abortion access

Ohio Attorney General Dave Yost admitted on Friday in a court filing that the state’s ban on most abortions is unconstitutional after voters passed an amendment to the Ohio Constitution in November 2023 enshrining access to abortion.

The issue in the pending litigation is a law passed by the Ohio legislature and signed by former Ohio Governor Mike DeWine as Senate Bill (S.B.) 23. It was later codified as R.C. 2919.195. Otherwise known as the “Human Rights Protection Act,” the law bans abortions as early as five weeks. Though the law provides an exception to save the life of the mother, it does not exempt cases of rape or incest.

Shortly after the law was enacted, a federal judge blocked its enforcement after the ACLU filed a suit seeking its injunction. An appeals court then denied the state’s request to lift the injunction against the law. After the US Supreme Court released its opinion in Dobbs v. Jackson Women’s Health Organization in June 2022, the Ohio Supreme Court permitted the law to take effect. Central to the litigation now is Ohio Issue 1, the Right to Make Reproductive Decisions Including Abortion Initiative, a ballot measure that was approved by voters late last year.

In his response to the plaintiff-abortion clinics’ motion for judgment on the pleadings, Yost acknowledged that “the language of the Amendment makes clear that the core prohibition itself is invalid under the latest version of the Ohio Constitution.” However, he noted that the plaintiffs may go further than what Ohioans enacted in approving Ohio Issue 1. Yost wrote:

Just as it is the State Government’s duty to respect the will of the People by conceding the invalidity of a statutory provision that conflicts with the current language of the Ohio Constitution, it is also the State Government’s duty to respect the will of the People by defending statutory provisions that the Amendment does not invalidate against meritless attack. Against such overreach, the State will stand fast.

Though Yost conceded that the “core prohibition” of the law should be struck down, he argued that S.B. 23 enacted various other provisions that should not be enjoined. Among these provisions include R.C. 2919.192, which requires health care providers to check for a fetal heartbeat, and R.C. 2919.196, which requires that health care providers clearly record a patient’s reason for receiving an abortion.

Yost also asked the court to uphold R.C. 2919.197, which safeguards “the sale, use, prescription, or administration of a drug, device, or chemical for contraceptive purposes,” and R.C. 2919.198, which provides those who receive abortions immunity from prosecution for doing so.

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