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· October 25, 2013

ACLU Sues to End Midnight Abortion Regulations

On October 9, a group of volunteer attorneys for the ACLU of Ohio (including Susan Scheutzow, myself, and others) sued on behalf of Preterm, a clinic that provides abortion care in Cleveland, to enjoin three anti-abortion provisions in the 2014-2015 Ohio budget bill. Those three provisions were snuck into the budget bill shortly before it passed, in some cases without any opportunity for debate or public hearing. The Ohio Constitution contains a provision, known as the “single-subject rule,” that is intended to protect against just this sort of legislative conduct. It requires every piece of legislation to deal with only one subject and to relate to one singular purpose. It prohibits the legislature from adding on a hodgepodge of unrelated riders that might not pass on their own. The abortion restrictions at issue in our suit have nothing whatsoever to do with the budget. One is a criminal law requiring that, before an abortion, a woman must be asked if she wants to see or hear the fetal heartbeat and then be told the likelihood that her fetus would survive to term if she chose not to abort it. These heartbeat provisions closely track some of the provisions in an earlier “heartbeat bill” that never garnered enough support to pass on its own. Not only is the newly required heartbeat information medically irrelevant to any woman who has decided to have an abortion, it is also frankly cruel. This requirement makes plenty of women feel sad and ashamed, but it does not appear, so far, to change anyone’s mind. The other two restrictions—one that channels federal funds to anti-abortion crisis pregnancy centers and another that requires abortion clinics to have transfer agreements with local hospitals but forbids public hospitals (broadly defined) from entering into those agreements—also have absolutely nothing to do with the budgetary purpose of the bill. For all of these reasons, we are optimistic that the Ohio state courts will strike these three unrelated provisions from the budget. The defendants listed in the case include, Governor Kasich, The State of Ohio, The Ohio Department of Health, The Ohio Department of Job and Family Services, Cuyahoga County Prosecutor Timothy McGinty  and the Ohio Medical Board.We are currently waiting for the defendants to file their answer to the complaint—which may take a few more weeks.  After that, we hope the state will agree with us to move the litigation along quickly, since there won’t be much evidence-gathering of the sort that more fact-intensive cases may require. We don’t know exactly how long the process will take, but we hope to get a decision from the court as quickly as possible. Nearly everyone was taken by surprise by these provisions in the budget bill, and we were unable to file suit before the effective date of the law. The law is now in effect and is not being suspended while the case is pending. This means that and Preterm has already had to comply with these burdensome regulations, and its patients are suffering every day as a result. This is why we hope the constitutionality of the law will be decided quickly. The case will likely then go up to the 8th District Court of Appeals, and then the Ohio Supreme Court, which is as high as the case can go. We hope and believe the courts will ultimately vindicate our client’s right not to be subjected to these unconstitutional abortion restrictions. Jessie Hill is a Professor at Case Western Reserve University School of Law. She is also a volunteer attorney on the case that was filed on behalf of Preterm. 

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