Anti-Abortion Law In Ohio Could Set The Stage For Looming Supreme Court Battle

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 11, 2017

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AbortionIn early 2016, the Supreme Court struck down a Texas abortion law that mandated higher quality standards at clinics, but the case seems to be a sign of a bubbling legal battle. Texas has already responded to its latest defeat with another controversial abortion rule, and legislators in Oklahoma and Ohio have made news recently with similar laws designed to limit or impede abortions which are destined for legal challenge.

Oklahoma Abortion Law Blocked by State Court

In December, the Oklahoma Supreme Court followed the US Supreme Court’s lead by striking down an Oklahoma law which increased licensing requirements for abortion clinics and physicians. The Oklahoma law was passed in 2014, and required an abortion doctor to have admitting privileges at a hospital within 30 miles of the abortion clinic. The measure earned support from conservatives using the same argument as their counterparts in Texas: the law was necessary to ensure medical standards and promoted the safety of women who underwent abortion procedures.

Opponents argued successfully that the law placed an undue burden on access to abortions. According to the Oklahoma Supreme Court, the restriction did not promote health and safety of women, but instead was used to limit access to constitutionally protected procedures. The ruling mirrors the Supreme Court’s position taken earlier this year, and affirms the judiciary’s position on regulations which use medical licensing standards to shut down abortion clinics. Despite another setback, anti-abortion advocates continue to argue that clinics lack adequate medical standards, and similar laws in North Carolina, Missouri, and Alaska all face court battles in the coming months.

Given the Supreme Court’s position, it is unlikely that a state law which requires abortion doctors to have admitting privileges at a hospital within a certain distance of the clinic will hold up, however, state are passing alternative abortion laws which could face their own legal challenge soon.

Ohio Passes New Abortion Bill

Ohio Gov. John Kasich advanced his state’s pro-life agenda by signing a law which bans abortions 20 weeks after conception — challenging the existing legal paradigm which permits abortions up to “fetus viability,” or sometime between 23 – 25 weeks.  Ohio currently requires any abortion after 20 weeks to go through a vigorous approval process. However, the newly passed law eliminates any chance of 20 week abortions unless the mother’s health is in jeopardy. Gov. Kasich vetoed a “heartbeat bill” which would have outlawed abortions when a heartbeat was detected (as soon as 6 weeks), citing recent failures of similar laws out of North Dakota and Arkansas which were both struck down in federal court.

Despite not being as restrictive as the heartbeat law, Gov. Kasich’s 20-week abortion ban is not without criticism, and will likely face a stiff legal challenge of its own when it takes effect. Critics of the bill argued that Kasich is not moderate simply because he vetoed the heartbeat bill, and accuse Ohio Republicans of placing illegal restrictions on a constitutionally recognized right for women to have abortions. Dawn Laguens, the executive vice president of Planned Parenthood Action Fund, said in a statement that Kasich was advancing an “extreme agenda” and argued that, “The 20-week ban will force women to travel long distances and cross state lines in order to access safe, legal abortion — a barrier that many women simply cannot afford. This is just another shameful attempt by John Kasich to make abortion illegal.” 

Pro-life advocates praised Kasich’s decision, saying that the 20 week abortion ban is a lawful compromise which will allow women to exercise their right to obtain an abortion but still protect the sanctity of human life. Should the law face a legal challenge in federal court, it could set the stage for the growing movement among conservatives to directly challenge Roe v Wade.

Abortion Laws Gathering Steam in America

Perhaps emboldened by President-elect Donald Trump’s pledge to appoint a Supreme Court Justice who opposes abortion and will overturn Roe v Wade, conservative states are increasingly pushing the limits of the federal “undue burden” standard with laws designed to limit access to abortions. Texas followed up its loss in the Supreme Court with a regulation requiring all aborted fetal remains receive cremation or burial services and Ohio’s 20-week ban is the 16th such regulation passed in the country. Texas’s new law is already in the midst of a bitter legal battle, and a lawsuit against Ohio’s 20-week ban is sure to follow, which suggests that pro-life conservatives seem to be passing these laws to give the Supreme Court a case which will challenge the right to abortion.

Whether or not the Supreme Court considers the laws which are currently in dispute remains to be seen. However, Ohio Right to Life President Mike Gonidakis confirmed the anti-abortion agenda in praising Kasich’s 20-week ban saying, “By endorsing the 20-week ban in lieu of the heartbeat approach, Gov. Kasich provided strong pro-life leadership to finally engage a winnable battle with the federal judiciary while saving countless babies at the same time.” With the future of the Supreme Court in flux, it is unclear whether or not the right to abortion first recognized in Roe v Wade will be intact after the legal battle looming on the horizon.

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