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After Roe, After Dobbs,
What Comes Next?
Looking Ahead at the Reproductive Legal Landscape in Ohio
By Rickell Howard Smith, Esq.
On June 24, 2022 the U.S Supreme Court (SCOTUS) issued Fourteenth Amendment.6 The decision triggered many States to
the landmark decision in Dobbs v. Jackson Women’s take immediate action, ranging from codification of the right to 17
Health Organization , 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 abor- tion 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.
Dobbs v. Jackson Women’s Health Organization
Filed on behalf of the only remaining abortion clinic in Mississippi, Dobbs challenged the state’s 2018 law banning abor- tions 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 deci- sions 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 abor- tion is not a fundamental right protected by the Constitution or
abortion, to limitations on access and complete abortion bans. It should be noted that Dobbs does not require States to consider viability of the fetus, health of the pregnant person, nor preg- nancy resulting from rape or incest when enacting state abortion legislation.
Dobbs’ Immediate Impact in Ohio
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 injunc- tion 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 Protec- tion Act is Ohio law.
THE REPORT | September/October 2022 | CincyBar.org 5