On Wednesday, September 14, 2022, Ohio state judge Christian Jenkins, temporarily blocked the state's "heartbeat" abortion ban, which effectively bans abortion after 6 weeks of pregnancy, or once fetal cardiac activity is detected. The law makes performing an abortion a felony, although it does contain exceptions to prevent a pregnant person's death or serious bodily injury. In a hearing earlier this month, Judge Jenkins considered the practical effects of the law if it remained in existence, such as whether doctors will be too cautious, even if they feel a situation fits an exception, and therefore not perform some abortions for fear of being prosecuted. Ultimately, Judge Jenkins issued a temporary restraining order blocking the law from being enforced for the next two weeks by the defendants (the Attorney General of Ohio, the Director of the Ohio Department of Health, the Secretary of the State Medical Board of Ohio, the Supervising Member of the State Medical Board of Ohio, and prosecutors from Ohio's six most populous counties), and finding that abortion rights are protected in Ohio under its state Bill of Rights and a 2011 amendment to the Ohio Constitution.
In so doing, Judge Jenkins relied on both due process and equal protection clauses of the Ohio Bill of Rights, as well as a 2011 amendment and a 1993 case from an Ohio appeals court. The 2011 amendment was originally conceived as a response to the Affordable Care Act and sought to allow Ohioans to avoid requirements under the ACA, but its broad language essentially confers on Ohioans the freedom to choose their own health care and coverage, which Judge Jenkins now ruled includes abortion. The 1993 case held that the Ohio Constitution confers greater rights than are conferred by the United States Constitution, and thus a law that is unconstitutional at the federal level can nevertheless be found not to violate the Ohio Constitution. In Judge Jenkins' application of that case to Ohio's "heartbeat" abortion ban, the ban was found to violate the Ohio Constitution, even if it does not violate the United States Constitution with the overturning of Roe v. Wade.
This case highlights the federalism, states' rights issues, and continuing fracture and confusion across the country as the Supreme Court's Dobbs ruling overturning Roe trickles down to lower federal courts and state courts, which are left to grapple with these issues of state and federal constitutional rights, the supremacy of federal law, and the question of where state abortion bans fit into that puzzle.
Already in less than 3 months since Dobbs was decided, we've seen state abortion bans put on hold for violating state constitutions (as here in Ohio), a ban struck down entirely for violating the Michigan Constitution earlier this month, a state abortion ban in Idaho put on hold by a federal judge for violating the federal law of EMTALA, and a federal judge in Texas issuing an injunction preventing the federal government from enforcing its EMTALA guidance in Texas.
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