Ohio's 'Heartbeat' Abortion Law Declared Unconstitutional

CINCINNATI (CN) — The state of Ohio is permanently enjoined from enforcing the so-called “heartbeat bill,” which previously outlawed abortions once a fetal heartbeat is detected, after a state court judge determined the law is now unconstitutional. The passage of a constitutional amendment in 2023 to protect abortion rights in Ohio invalidates the law, according to the judge's ruling. Amendment 1 passed with nearly 57% of the vote last November and enshrined the right to an abortion in the Ohio Constitution, a right that, according to Thursday’s decision from Hamilton County Common Pleas Court Judge Christian Jenkins, renders SB 23 unconstitutional.

“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 said in his opinion. “This is a momentous ruling, showing the power of Ohio’s new Reproductive Freedom Amendment in practice,” said Jessie Hill, cooperating attorney for the ACLU of Ohio. “The six-week ban is blatantly unconstitutional and has no place in our law.”

Provisions Struck Down

Jenkins granted Preterm-Cleveland’s motion for judgment on the pleadings. While the state conceded the “core provision” of the law — which prohibits abortions after a heartbeat is detected — is unconstitutional following the passage of Amendment 1, Republican Attorney General Dave Yost argued the rest of the law should remain intact. Among the provisions Yost sought to keep on the books are ones that criminalize performing an abortion without first checking for a fetal heartbeat, require doctors to make a written record of the reason a woman chooses to have an abortion, and suspend or revoke medical licenses of abortion providers who fail to follow other abortion restrictions.

Jenkins determined any provision of the law that “directly or indirectly burdens, penalizes, prohibits, interferes with or discriminates against the right to pre-viability abortion” is invalid under the newly passed amendment to the state constitution, unless the state proves the provision is the least restrictive means to advance a patient’s health, per an exception in the amendment. According to Jenkins, Yost did not meet this burden. “It may be that the requirement to check for cardiac activity before performing an abortion is the least restrictive means to protect the pregnant individual’s health and that it is consistent with widely-accepted and evidence-based standards of care … but this is not demonstrated from the pleadings, and the state does nothing to carry the burden imposed upon it by the amendment in this regard,” he said.

Jenkins went through each of the challenged provisions in his opinion to determine their constitutionality and ultimately ruled reporting requirements — including the reasons a woman choses to have an abortion — are unconstitutional and must be enjoined. Likewise, the provision that imposes felony criminal punishments on physicians who perform abortions without first checking for a heartbeat was struck down.

Remaining Provision

One provision left untouched by Jenkins and not challenged by the abortion providers was Revised Code 2919.1910, which creates a joint legislative committee on adoption promotion and support.