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Ohio Supreme Court to decide if clinics can sue over near-total abortion ban

A divided court agreed to hear arguments on whether abortion clinics can challenge the law on behalf of their clients, but not over whether the state constitution guarantees a right to the procedure.

COLUMBUS, Ohio (CN) — A conservative majority of the Ohio Supreme Court decided Tuesday to consider whether a state judge properly halted enforcement of a fetal heartbeat abortion law last year, and specifically whether clinics have standing to sue on behalf of their clients.

Despite the decision, the state's high court will not determine whether there is a constitutional right to an abortion in the Buckeye State.

Republican Governor Mike DeWine signed the so-called "heartbeat bill" – which bans abortions at the moment a fetal heartbeat is detected, usually around the six-week mark of a pregnancy – into law in 2019, but it was initially enjoined by a federal judge.

In the wake of the U.S. Supreme Court's decision to overturn Roe v. Wade, however, the law went into effect, at least temporarily.

It was challenged again, this time in state court, by the ACLU and Ohio abortion providers, and a judge in the Hamilton County Common Pleas Court in Cincinnati issued an injunction to prevent its enforcement.

A state appeals court panel denied the state's request for relief and determined it lacked jurisdiction over the case, which had yet to proceed to trial.

Ohio Attorney General Dave Yost, a Republican, appealed the injunction to the state's high court, and on Tuesday a divided court agreed to take up the case.

In a one-page notice, the court agreed to decide the first two propositions of law found in Yost's appeal of the lower court's decision.

Specifically, the court will determine whether the state attorney general can appeal orders that block the implementation of state laws, and whether the abortion clinics have third-party standing to sue on behalf of their clients.

Chief Justice Sharon Kennedy, Justices Pat DeWine and Pat Fischer and Ohio Court of Appeals Judge Matthew Byrne – assigned to the case following the recusal of Justice Joe Deters – voted in favor of review.

Notably, Kennedy, DeWine, and Bryne wanted to hear arguments on every proposition of law put forth in the state's appeal – including whether the Ohio Constitution guarantees a right to an abortion – but Fischer balked at the idea.

The court's three Democratic justices – Michael Donnelly, Melody Stewart and Jennifer Brunner – voted not to hear the case.

Ohio is one of a number of states to implement tougher restrictions on access to abortions following the reversal of Roe. The heartbeat bill is essentially an outright ban on the procedure, given that many women do not even know they are pregnant at the six-week mark.

The legal battle in Ohio between conservative lawmakers and civil rights groups has spanned years, both on the state and federal level, and involved the funding of clinics will federal money, as well as previous laws, including a ban on abortions in which a woman's decision is based on a diagnosis of Down syndrome. That law, House Bill 214, was signed by previous Republican Governor John Kasich and was enjoined by a federal judge before being allowed to take effect following arguments before the full Sixth Circuit.

Conversely, the ACLU of Ohio scored a minor victory Monday when the state's ballot board approved the group's request to collect signatures for the placement of a constitutional amendment on the November 2023 ballot.

The proposed amendment would enshrine the right to an abortion in the Ohio Constitution and was found to be in compliance with the state's "one-subject rule" by the Ohio Ballot Board.

"We have cleared two critical bureaucratic hurdles, and are excited to move into the next phase of our effort," said Kellie Copeland of Ohioans for Reproductive Freedom. "This grassroots initiative ... will create common-sense guarantees for Ohioans' freedom to make decisions about their own reproductive healthcare, including abortion."

Supporters of the measure will need to collect 413,000 valid signatures from Ohio voters by July 5 to qualify for placement on the ballot.

No date has been set for the Ohio Supreme Court's arguments on the heartbeat bill.

Yost's office did not immediately respond to a request for comment.

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