Ohio AG appeal of decision striking down state’s six-week abortion ban moves to appellate court

Ohio Attorney General Dave Yost’s appeal of a decision to strike down the state’s six-week abortion ban is working its way through the system, now in the hands of the First District Court of Appeals.

The appellate court has set a deadline of late February for the AG’s office to file briefs challenging a Hamilton County Court of Common Pleas decision that eliminated enforcement of the six-week abortion ban included in Senate Bill 23, passed by lawmakers and signed by Ohio Gov. Mike DeWine in 2019, and put into effect for several months in 2022 after Roe v. Wade was overturned.

The Hamilton County court ruled the law unconstitutional based on the reproductive rights constitutional amendment passed by Ohio voters in November 2023.

Attorney General Yost’s appeal asks the higher court to reconsider Hamilton County Judge Christian Jenkins’ decision.

Under the amendment passed by voters, viability is determined by a physician. Fetal viability typically comes in a range between 24 to 26 weeks. The Attorney General’s Office argues that other parts of the law apart from the six-week ban should be preserved despite the amendment.

After the U.S. Supreme Court decision overturning Roe v. Wade in June 2022, Yost asked a federal court to lift it’s block on the six-week ban, which it did. Abortion rights groups then took it back to court, first in the Ohio Supreme Court, and then in the Hamilton County court.

When the reproductive rights amendment passed in 2023, attorneys fighting against the ban had a new avenue to argue by citing the new amendment as proof the six-week ban was unconstitutional.

Before the amendment was passed, Yost had said the measure would in fact cause Ohio laws to be “invalidated,” including the six-week ban. But when pushing against the lawsuit in Hamilton County, state attorneys argued that while some parts of the law may be negated by the amendment, the entire law shouldn’t be tossed, nor should other laws merely because they relate to abortion rights.

A spokesperson for the AG’s office further pointed to the other provisions of the law in a statement released when Yost filed the appeal with the First District.

“Seeking appellate review is a necessary and appropriate step. The state respects the will of the people regarding the six-week abortion ban, but the state is also obligated to protect provisions in S.B. 23, as passed by the General Assembly and signed by the Governor, that the constitutional amendment does not address,” according to spokesperson Bethany McCorkle. “It is up to the courts to determine how conflicts between those two documents are resolved.”

Jenkins agreed with abortion rights advocates in his October ruling, saying the state constitution “now unequivocally protects the right to abortion.”

“Despite the adoption of a broad and strongly worded constitutional amendment, in this case and others, the State of Ohio seeks not to uphold the constitutional protection of abortion rights, but to diminish and limit it,” Jenkins wrote.

In November, the Ohio Attorney General’s Office filed their notice of appeal with the First District Court. To succeed in the appeal, the AG will have to prove that Jenkins erred “on questions of law” in ruling in favor of the abortions rights groups.

The appellate court set a Feb. 21 deadline for the Yost’s office to file an explanation of the legal errors they want the court to consider. Once that is filed, attorneys for abortion rights advocates will have until mid-March to file their own arguments.