First District Court of Appeals denies Ohio’s request to appeal a judge’s preliminary block of Heartbeat Act

 By Dave Andrusko

The First District Court of Appeals on Friday denied Ohio Attorney General David Yost’s request to appeal Judge Christian Jenkins’ decision to block its Heartbeat Act. While this block on S.B.23 is in effect, abortions can be performed up to 20 weeks.

“Regardless of what transpires at the lower courts, Ohio heartbeat law will ultimately be decided by the Ohio Supreme Court in 2023,” said Ohio Right to Life President Michael Gonidakis. “We are confident Ohio’s highest court will rule that nowhere in the Ohio Constitution does a right to an abortion exist.”

He added The abortion clinics literally forum shopped to get the outcome they wanted. This is a moment in time for the pro-life movement and we are convinced that the Ohio Supreme Court will overturn this ruling.”

Planned Parenthood, the ALCU of Ohio, and others said in a statement that “We are pleased that the appeal was correctly dismissed for lack of jurisdiction and that the case will continue before the trial court towards a final decision on the merits.”

Judge Jenkins had issued two temporary injunctions of two weeks each blocking S.B.23 , before issuing the indefinite injunction against the ban on October 7.

S.B. 23 was passed in 2019 and signed into law by Gov. Mike DeWine. It had been blocked by the courts until the U.S. Supreme Court’s June 24 historic Dobbs decision overturning Roe v. Wade. 

The Associated Press’ Julie Carr Smyth wrote at the time of Judge Jenkins’ decision

“In impassioned remarks announcing his decision, Jenkins knocked the state’s arguments that the Ohio Constitution doesn’t ever mention abortion and so doesn’t protect the right to one. He said a right doesn’t have to be named to be protected. 

“This court has no difficulty holding that the Ohio Constitution confers a fundamental right on all of Ohioans to privacy, procreation, bodily integrity and freedom of choice in health care decision-making that encompasses the right to abortion.” 

Jenkins added, “Ohio’s constitution does not allow women to be subject to such regulations, and gives no preference to any religion of specific ideological group under ‘rights of conscience,’” Ohio Capital Journal Staff reported.

In arguing against the injunctions, Yost’s office asserted that the abortion ban had become the status quo in Ohio after it was implemented at Yost’s request following the U.S. Supreme Court’s Dobbs decision.

In a 3-0 ruling, the appeals court said that Yost had appealed “prematurely,” Kevin Grasha and Jessie Balmert wrote

“Of course, any aggrieved party can appeal after the trial court issues its final judgment in the case,” Judge Pierre Bergeron said in the opinion. “Our answer on the merits of this dispute and the underlying constitutionality of the statute … must await another day.”

Yost’s office plans to take the case to the Ohio Supreme Court. “The First District Court of Appeals has erred as a matter of law. We will seek review by the Ohio Supreme Court,” Yost spokeswoman Bethany McCorkle said Friday.