Ohio AG’s office lays out argument in appeal that avoids fighting the six-week abortion ban

The Ohio Attorney General’s Office does not plan to fight a court ruling overturning the six-week abortion ban, but he wants an appellate court to roll back rulings that overturned other parts of the same law.

In a brief submitted to the First District Court of Appeals, Ohio’s solicitor general, T. Elliot Gaiser, reiterated that the appeal before the court didn’t have anything to do with attempting to roll back a Hamilton County judge’s ruling that a ban on abortions at six weeks gestation, included in 2019’s Senate Bill 23, was unconstitutional.

“The state has long conceded the obvious: The state’s ‘Heartbeat Ban’ – which banned abortions after a fetal heartbeat is detected – was overridden by the new Abortion Amendment,” Gaiser wrote, referring to the 2023 constitutional amendment passed by 57% of Ohio voters to enshrine reproductive rights including abortion into the state document. “Thus, the state is not defending that Heartbeat Ban. Nor is the state even trying, in this appeal, to defend the merits of any of the ancillary abortion regulations that were amended or enacted in the same bill as the Heartbeat Ban.”

Hamilton County Court of Common Pleas Judge Christian Jenkins cited the constitutional amendment as part of his October 2024 ruling, saying the Ohio Constitution now protects “the right to pre-viability abortion,” and to “give meaning to the voice of Ohio’s voters, the Amendment must be given full effect, and laws such as those enacted by (Senate Bill) 23 must be enjoined.”

The state is appealing decisions it says came alongside the six-week abortion ban ruling, that were made by the judge without a request from the groups suing to see the abortion ban struck down.

The solicitor general claimed the trial court decision “broke all the rules,” and the plaintiffs in the case “filed a vague, unclear motion for judgment.”

Gaiser said the trial court should have asked whether the provisions of the law could “stand alone” without the six-week abortion ban attached to them.

“Many provisions here plainly can, as they were law for years before S.B. 23 was enacted,” the brief stated.

Those provisions included what Gaiser called a “Check and Tell” provision, a requirement that doctors check for fetal cardiac activity and offer to allow the pregnant individual to hear it.

The main reason supporters called the law the “Heartbeat Act” was because they claimed a fetal heartbeat was present at six weeks of pregnancy. Scientist say fetal cardiac activity at that stage isn’t a fully formed heart, but instead indicates cardiac tissue development.

Some of the provisions brought up in the brief have been temporarily paused by a different court case, one in Franklin County in August 2024. In that case, a judge in the Franklin County Court of Common Pleas pumped the brakes on a 24-hour waiting period required before an abortion and the provision requiring doctors to check fetal activity.

Judge David C. Young cited the constitutional amendment as reason to stop enforcement of the requirements in that case for now.

Gaiser said the Hamilton County court that took up the S.B. 23 case “relied on the analysis” from the Franklin County case in issuing its decision, even though “plaintiffs did not even identify the challenged statutes” in the initial lawsuit “and did not offer any substantive challenge to them.”

Provisions such as definition sections, Ohio Department of Health reporting requirements, and others “can all work on their own without a Heartbeat Ban,” according to the brief.

“True, some (of the other provisions) might not seem to achieve much – such as the express protection of contraception – but they also do not harm Plaintiffs by staying in place, and even if they merely state the General Assembly’s intent as to contraception and the like, that is no small thing,” Gaiser wrote. “One critical representative function of any legislature is to codify the moral judgments of the community, including moral approval – here, of contraceptives.”