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On Sept. 14, the Hamilton County Court of Common Pleas placed a 14-day restraining order on Senate Bill 23, the six-week abortion ban that outlaws abortion after a fetal heartbeat can be detected. In June, following the overturning of Roe v. Wade by the U.S. Supreme Court, Gov. Mike DeWine signed an executive order that put the bill, originally signed into law in 2019, into effect.
The restraining order was filed through a combined effort of the American Civil Liberties Union, Planned Parenthood Federation of America and WilmerHale, an international law firm that focuses on equal justice. The order restores access to abortions through Wednesday, Sept. 28.
The decision, written by Judge Christian A. Jenkins says that since the 1971 Roe v. Wade decision, there had not been a lot of Ohio case law to determine if abortion was a right under the Ohio Constitution. The decision reads, in part:
“S.B. 23 does not violate the U.S. Constitution as recently interpreted in the Dobbs decision, but it may violate the Ohio Constitution. So far as this court can tell, no Ohio court has directly addressed the issue, so this court will.”
The decision goes on to say that the rights to privacy, procreation, bodily integrity and freedom of choice in healthcare decision-making are fundamental rights under Ohio law. Citing the 2011 Health Care Freedom Act, or HCFA, amendment to the Ohio Constitution, which at the time was written to undermine the Affordable Care Act, the Hamilton County court determined that the language in the Act prohibits Ohio lawmakers from regulating the types of healthcare Ohioans can access.
“The HCFA represents an express constitutional acknowledgement of the fundamental nature of the right to freedom and privacy in healthcare decision making,” the decision says.