Abortion rights supporters won two temporary victories on Friday when judges in Ohio and Arizona suspended state laws banning the procedures.
In Ohio, a county judge indefinitely suspended a state law prohibiting most abortions after six weeks of pregnancy. A few hours later, an appeals court in Arizona temporarily blocked its pre-statehood law banning the procedure.
The decisions marked progress for abortion advocates who have been fighting to restore access to the procedure in states that ban it.
The Ohio decision extends an earlier, temporary suspension of the law that was set to expire next week. The ruling means that the state’s abortion ban is suspended while the court case proceeds, providing a bit more certainty for abortion providers and women.
Without the ban in effect, abortion in Ohio is legal up to 22 weeks of pregnancy.
Since the U.S. Supreme Court overturned the constitutional right to abortion this summer, states have been free to regulate the procedure. More than a dozen, including Ohio, have passed laws banning most abortions. Some include narrow exceptions for rape, incest or if a pregnant woman’s life is in danger.
Those in favor of abortion rights have worked to overturn bans and restrictions by suing in state courts.
Attorney General David Yost of Ohio, who supports the six-week ban, could still appeal the case to a higher court.
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“We will wait and review the judge’s actual written order and consult with the governor’s administration,” on next steps, said a spokesman for Mr. Yost.
The ruling in Arizona blocks a near-total ban dating back to 1864. The strict law was reinstated last month by a lower court in Arizona. Though Friday’s ruling temporarily restored the injunction on the 158-year-old ban, a law passed this year restricting abortion after 15 weeks of pregnancy is in effect.
In the court’s brief, Presiding Judge Peter J. Eckerstrom wrote that the lower court erred by failing to consider Arizona’s more recent abortion laws, which attorneys for Planned Parenthood say conflict with the pre-statehood ban.
“Arizona courts have a responsibility to attempt to harmonize all of this state’s relevant statutes,” the judge wrote.
Friday’s decisions, though not the final word on the cases, offered a window into which legal arguments might be working in the broader strategy to re-establish abortion rights through state courts.
The plaintiffs in the Ohio case, a collective of abortion providers including Planned Parenthood of Greater Ohio, argued that Ohio’s state Constitution offered “broad protections for individual liberties,” which includes the right to abortion.
The Ohio law, passed in 2019, went into effect this year after the Supreme Court decision and remained in effect for over two months.
In his opinion, Judge Christian Jenkins, of the Hamilton County Court of Common Pleas, argued that the right to abortion was found in the Ohio Constitution, saying, “abortion is health care.”
“Ohio’s Constitution specifically and unambiguously recognized as fundamental the right to liberty,” Judge Jenkins said, adding that the state Constitution guaranteed the right to “seek and obtain safety.”
State officials had argued that the right to abortion was not explicitly found in Ohio’s Constitution.
Judge Jenkins, a Democrat, said that the state was “simply wrong” to argue “that a right does not exist because it is not specifically listed in the Constitution.”
“By the state’s reasoning, the Obergefell decision recognizing the right to gay marriage is wrong,” the judge said, referring to the 2015 Supreme Court decision that made same-sex marriage a nationwide right.
The Ohio law restricts abortion after fetal cardiac activity can be detected, which is generally six weeks after the start of a pregnant woman’s last period, and before many women realize they are pregnant.
The law does not include exceptions for rape and incest, a feature that drew national attention this summer when a 10-year-old Ohio girl who had become pregnant through rape was denied an abortion in her home state.
The plaintiffs argued that the Ohio law deprived women of liberty and due process rights, citing several examples of unnamed women. They included a cancer patient who had to travel out of state for an abortion, according to affidavits submitted by a Cleveland abortion clinic. The patient, who had stage III melanoma, “broke down and cried” after learning she would have to travel outside of the state for an abortion so she could begin cancer treatment. Cancer treatments can be harmful to the fetus, so patients are often given the option of abortion before beginning treatment.
“Does a law that prevents a cancer patient from getting lifesaving treatment infringe on those rights? The answer is obviously it does,” Judge Jenkins said. The plaintiffs said they were “relieved that patients in Ohio can continue to access abortion as we work to fight this unjust and dangerous ban in court.”
“The preliminary injunction will be in place for the duration of our case, which means abortions will be legal in Ohio for a period much, much longer” than the initial suspension, they added.
