The Ohio Supreme Court has formally accepted an appeal by Ohio Attorney General Dave Yost in a case involving the state’s six-week abortion ban.
The court announced on Tuesday morning that it will only consider two of the three legal issues Yost asked the court to consider: whether he has the right to appeal a lower court’s decision to put the heartbeat law on hold and whether abortion clinics have “standing” or the legal authority to challenge the law in the first place.
Whether the Ohio Constitution establishes the right to an abortion was the third issue that the court chose not to address.
The appeals case is a result of a lawsuit filed in September in Hamilton County Common Pleas Court by Planned Parenthood and Ohio abortion facilities, in which they contested Ohio’s Heartbeat Law, Senate Bill (SB) 23 passed in 2019 , which went into effect after the U.S. Supreme Court reversed Roe v. Wade. Hamilton County Judge Christian Jenkins issued the preliminary injunction in October which put the Heartbeat Law on hold until a trial.
The Heartbeat Law prohibits abortion if an unborn baby has a detectable heartbeat.
The state appealed the preliminary injunction to Ohio’s First District Court of Appeals through Yost. Because the injunction was only preliminary and not permanent, the appeal court questioned whether it had the authority to decide on it.
According to the appellate court’s decision, the injunction was appealed prematurely because the trial court’s case was not yet concluded.
The decision of the appellate court would have sent the matter back to the trial court, but Yost then appealed the decision to the Ohio Supreme Court which officially took the case Tuesday.
“If allowed to stand, the First District’s ruling will leave the state with no way to protect legislation from egregiously wrong preliminary injunctions. Trial courts that issue such injunctions have every incentive to drag out lower-court proceedings, ensuring their orders remain in effect and that state laws with which they disagree remain unenforceable for as long as possible,” Yost’s brief says.
Chief Justice Sharon Kennedy, as well as Republican Justice Pat DeWine, and sitting Judge Matthew Byrne all voted in favor of accepting the full appeal.
Kennedy assigned Byrne last week to take over for newly appointed Ohio Justice Joe Deters, who recused himself after the abortion clinic plaintiffs argued that he couldn’t rule on the states heartbeat bill ban because he was an original defendant on the case when he was serving as Hamilton County Prosecutor.
Justices Michael Donnelly, Melody Stewart, and Jennifer Brunner, three Democratic members of the court, disagreed with the decision to pursue the full appeal.
Justice Patrick Fischer as the deciding vote agreed to review the legal questions but not whether there is a constitutional right to abortion.
The Ohio Star reached out to Yost’s office for comment but did not receive one before press time.
The court has yet to establish a date to review the case.
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Hannah Poling is a lead reporter at The Ohio Star and The Star News Network. Follow Hannah on Twitter @HannahPoling1. Email tips to [email protected]