Federal Judge Halts Ohio’s Abortion Ban

Ohio Gov. Mike DeWine speaks in 2019 before signing a bill imposing one of the nation’s toughest abortion restrictions. (Fred Squillante/The Columbus Dispatch via AP)

(CN) — In line with similar rulings from other federal judges, Ohio doctors can continue providing abortions through the Covid-19 pandemic, following a federal judge’s injunction Thursday.

U.S. District Judge Michael Barrett ruled that the executive order banning nonessential surgeries would risk violating constitutional rights under Roe v. Wade if it stopped abortions.

Barrett, a George W. Bush appointee, granted the injunction to a group of abortion providers as part of a broader pending lawsuit against Ohio’s Republican attorney general, Dave Yost, along with a handful of state health officials and prosecuting attorneys.

That lawsuit’s original purpose was to overturn a state law banning abortions once a fetal heartbeat was detected – as early as six weeks.

Thursday’s injunction solidified an earlier temporary restraining order against Yost, who the plaintiffs said emailed three reproductive health clinics on March 20 and 21, ordering them to to stop performing “nonessential and elective surgical abortions.”

Because these surgeries used the already short supply of personal protective equipment including N95 respiratory masks, Yost wrote, they violated the Ohio Department of Health’s order to stop performing surgeries that “can be delayed without undue risk to the current or future health of a patient.”

The Sixth Circuit upheld the restraining order on April 6, and the clinics sought an injunction to prevent further efforts to stop abortions under the order, arguing that any delay or cancellation of an abortion could hurt patients’ health.

The clinics said doctors were already using their best judgment to conserve PPE and determine which procedures could reasonably be put off.

“Applying the director’s order to ban surgical abortion would ban abortion entirely for patients with pregnancies beyond ten weeks,” attorney B. Jessie Hill of the American Civil Liberties Union wrote, “and those with earlier pregnancies for whom medication abortion is not appropriate. Thus the director’s order is not just a substantial obstacle to obtaining an abortion, it will operate as a complete one.”

Hill cited Barrett’s approval of an earlier injunction that prevented enforcement of the “heartbeat law” in part because of its likely conflict with the Supreme Court’s 1973 Roe v. Wade decision.

Yost’s office countered that “women seeking abortions are being treated no differently than anyone seeking Lasik, a face-lift, or any other non-essential medical procedure at this time,” and that the order was “clearly not ‘designed to strike at the right itself.’”

Any precautionary measures taken, if even partially effective, would not negate the risk to society posed by performing the procedures and using precious PPE, Assistant Attorney General Heather Buchanan wrote.

Barrett was not convinced.

“Defendants’ false equivalence between a woman seeking pre-viability abortion care during the Covid-19 pandemic and a woman seeking a face-lift during the Covid-19 pandemic ignores well-settled Supreme Court precedent on the Fourteenth Amendment’s guarantee of the right to reproductive freedom,” he wrote.

Hill said she was pleased with Barrett’s order.

“The judge has confirmed that under the non-essential surgeries order, abortion providers in Ohio get the same treatment as all other physicians,” she said. “They can use their professional judgment to determine whether it’s appropriate to go forward with an abortion.”

Especially heartening, she said, were three pages where Barrett criticized “the fluidity of defendant’s interpretation of the director’s order as applied to plaintiffs” and recognized the clinics’ concerns that Yost’s office would change its interpretation of the order from day to day.

Hill said that while Yost and his fellow state agencies could appeal the decision, she’s hopeful that Governor Mike DeWine’s Wednesday announcement of plans to ease the elective-surgery ban will soon make the point moot.

Media contacts at the Attorney General’s office were unavailable for immediate comment after business hours.

Court battles over pandemic-related abortion bans have raged across the United States throughout April. In Texas, the Fifth Circuit reinstated a similar ban on Monday after an Austin-based federal judge carved out two exceptions for certain abortions, only for the governor to issue a renewed executive order exempting abortions from the nonessential surgery ban altogether.

Bans in Alabama, Oklahoma and Tennessee have all been overturned in the last two weeks, and the Eighth Circuit upheld Arkansas’ temporary ban in a 2-1 decision on Wednesday.

Planned Parenthood, which operates two of the plaintiff clinics, issued a statement by acting president and CEO Alexis McGill Johnson praising the decision and condemning Yost and others attempting to ban abortions.

“While today’s ruling may be a temporary sigh of relief for patients in Ohio, health care providers should never have been forced to go to court just to serve their patients,” she wrote. “Using a global pandemic to pursue a political agenda is as unconscionable as it is reckless.”

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