Ohio AG takes nuanced approach in defending state’s 2019 ‘heartbeat law’

Ohio officials are asking an appeals court to preserve parts of the state’s 2019 “heartbeat law” while conceding that the statute’s core ban on abortions after six weeks was overridden by a voter-approved constitutional amendment.

Courts struck down the 2019 ban after it was signed into law, but Ohio Attorney General Dave Yost sought to implement it after the 2022 U.S. Supreme Court ruling eliminating the constitutional right to abortion.

The six-week ban was effectively overridden by Ohio voters’ approval of Issue 1, the Ohio Reproductive Freedom Amendment. The amendment to the state constitution assured the right to reproductive health care, including abortions, in November 2023.

In a brief filed with the First District Court of Appeals in Cincinnati, Ohio Solicitor General T. Elliot Gaiser said the state “has long conceded the obvious and that is the state’s’ Heartbeat Ban’ was overridden by the new Abortion Amendment. Thus the state is not defending the Heartbeat Ban.”

Gaiser added the appeal instead targets other provisions in Senate Bill 23 that the state says can “stand alone,” including reporting requirements such as a so-called “check and tell” rule that would require physicals to check for fetal cardiac activity and offer patients the chance to hear it.

“There’s basically two issues” in the appeal, Deputy Solicitor General Stephen Carney told the district court last week, per the Ohio Capital Journal. “What did the legislature intend and, separately, are [the provisions] capable to function by themselves.”

“The legislature’s intent here says, ‘We want to keep whatever we can keep,’” Carney said, per News 5 Cleveland.

However, critics of the ban said the law is a “package deal,” and that no part can stand on its own, Bloomberg Law reported.

“Our argument is that those provisions must also fall,” Cassie Mitchell, an ACLU of Ohio attorney, said, per News 5 Cleveland.

“This court can resolve this now,” Mitchell added, according to the station. “It can give plaintiffs and their patients the certainty they need as to what the requirements of Ohio law are, and we can just all move on.”

Separately, some Republican lawmakers were pushing for a total abortion ban. The Ohio measure would reportedly supersede Ohio’s constitutional amendment by using the U.S. Constitution’s equal protection clause.