On June 24, 2022 the U.S Supreme Court (SCOTUS) issued the landmark decision in Dobbs v. Jackson Women’s Health Organization1, holding that the Constitution does not confer a right to abortion — overturning nearly 50 years of precedent established by Roe v. Wade.2 Dobbs expressly remands the right to abortion care to the States, a seismic shift in abortion rights and the ability to access reproductive healthcare in America. The right to abortion care has long been a polarizing issue, invoking our personal, legal and religious values on all sides. Unraveling Roe is complicated, and the future of abortion care is uncertain.
As with any public policy debate, it is important for the legal community to understand the impact and implications of Dobbs, pending abortion legislation, and practical impact on our clients and their families.
Filed on behalf of the only remaining abortion clinic in Mississippi, Dobbs challenged the state’s 2018 law banning abortions after the fifteenth week of pregnancy.3 The District Court permanently enjoined enforcement of the law, reasoning that the fifteen-week restriction on abortion violated SCOTUS decisions in Roe and Casey.4 After certiorari was granted, the state of Mississippi revised its’ strategy seeking complete reversal of Roe v. Wade.5
Though Justice Alito’s majority opinion in Dobbs sparked significant debates amongst constitutional scholars and civil rights litigators, the Court’s decision is clear: the right to abortion is not a fundamental right protected by the Constitution or Fourteenth Amendment.6 The decision triggered many States to take immediate action, ranging from codification of the right to abortion, to limitations on access and complete abortion bans.7 It should be noted that Dobbs does not require States to consider viability of the fetus, health of the pregnant person, nor pregnancy resulting from rape or incest when enacting state abortion legislation.
Prior to Dobbs, abortion was legal until 20 weeks of pregnancy in Ohio.8 Minutes after the Dobbs decision was issued, Ohio Attorney General Dave Yost filed a motion to dissolve the injunction that previously stayed enactment of the Human Rights and Heartbeat Protection Act9 (also known as the “Heartbeat Bill” or “six-week ban”). Yost’s motion was granted and the 2019 law making it illegal to have an abortion after fetal cardiac activity has been detected, went into effect.10 The law does not include exceptions when pregnancy results from rape or incest.11 The law does include an exception for abortions performed when there is a serious risk of death or impairment to the patient.12 Though patients are not prosecuted under this law, abortion providers face fifth-degree felony charges for violating the six-week ban.13
Abortion providers throughout Ohio responded by filing a mandamus action with the Supreme Court of Ohio, requesting an emergency stay to stop the law from going into effect.14 The request for emergency stay was denied. We can expect legal challenges to continue, but as of today the Human Rights and Heartbeat Protection Act is Ohio law.
Can we expect an absolute ban on abortion care in Ohio’s future? There are a few bills that would impact the future of abortion in Ohio, if passed:
Following the institution of Ohio’s six-week abortion ban, those seeking abortion care may look to surrounding states. Abortion providers in Ohio have implemented patient navigation programs and abortion funds to assist people in coordinating abortion care across state lines. These programs provide assistance with financial screening, lodging, emotional support, and/or other resources needed. Though most surrounding states have some restrictions on abortion, Ohio and Kentucky are the most restrictive in the region.*
Congress can codify rights, including abortion protections, via legislation or by constitutional amendment. After Dobbs, two congressional bills aimed at protecting abortion rights were introduced: the Women’s Health Protection Act, which would codify abortion rights protections into federal law25; and the Ensuring Access to Abortion Act,26 which would ban states from punishing patients who travel out of state for reproductive health care. Both bills must be passed by the House and Senate to become law. On July 8th, President Biden signed an executive order to ensure access to medication abortion, contraception, and emergency medical care for pregnant people.27 Currently, there is no pending legislation that would ban abortion on the federal level.
Though the holding in Dobbs is clear, the long-term impact on abortion access, reproductive healthcare, social services, and our legal system is uncertain. Only time will tell. Justice Alito unequivocally states: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives…”28 November 2022 midterm elections may have a profound impact on abortion rights in America. The future of abortion access lies with the power of voters.
Smith is a civil rights attorney and founding Executive Director of the Center for Social Justice at Urban League of Greater Southwest Ohio. She co-chairs the CBA’s Social & Criminal Justice Committee, teaches civil rights litigation as adjunct professor at the University of Cincinnati College of Law, and is current Board Chair of Planned Parenthood of Southwest Ohio.
*Information is accurate as of August 2, 2022. Legislation may change after The Report has gone to print.
1 Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. (June 24, 2022).
2 Roe v. Wade, 410 U.S. 113 (1973).
3 Dobbs, syllabus (citing Mississippi Gestational Age Act, Miss. Code Ann. Section 41-41-191)
4 Id.
5 Id.
6 Id. at 1-2.
7 “Tracking the States Where Abortion is Now Banned,” The New York Times, August 1, 2022, https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html
8 OHIO REV. CODE ANN. § 2919.201(A)
9 Preterm-Cleveland v. Yost, no. 1:19-cv-00360 (S.D. Ohio Jun. 24, 2022); OHIO REV. CODE ANN. § 2919.195(A)
10 Preterm-Cleveland v. Yost, no. 1:19-cv-00360 (S.D. Ohio Jun. 24, 2022) (order lifting preliminary injunction)
11 OHIO REV. CODE ANN. § 2919.195
12 OHIO REV. CODE ANN. § 2919.195(B)
13 OHIO REV. CODE ANN. § 2919.195(A)
14 State Ex Rel. Preterm-Cleveland, et al v. David Yost, et al, Case No. 2022-0803, (Original Action in Mandamus,filed June 29, 2022)
15 Ohio H.B. 480, 134th General Assembly (introduced November 2, 2021)
16 Ohio H.B. 704, 134th General Assembly (introduced July 11, 2022)
17 Ohio S.B. 304, 134th General Assembly (introduced March 1, 2022)
18 Ohio S.J.R. No. 7, 134th General Assembly (Offered May 27, 2022)
19 KY. REV. STAT. § 311.772
20 Ind. S.B. 1, 2022 Special Session (effective September 15, 2022)
21 MICH. COMP. LAWS § 750.323
22 W. VA. CODE §§ 16-2M-2(7), 16-2M-4
23 775 ILL. COMP. STAT. 55/1-25(a).
24 18 PA. CONS. STAT. §§ 3211(a), 3203.
25 Women’s Health Protection Act of 2022, S.4132, 117th Cong. (2022), http://www.congress.gov/.
26 Ensuring Access to Abortion Act of 2022, H.R.8297, 117th Cong. (2022), http://www.congress.gov/.
27 https://www.whitehouse.gov/briefing-room/statements-releases/2022/07/08/fact-sheet-president-biden-to-sign-executive-order-protecting-access-to-reproductive-health-care-services/
28 Dobbs v. Jackson at 6.