An Ohio appellate court sided with abortion rights advocates in an appeal that blocks most of a law that regulated how clinics dispose of remains from abortions.
The case came to the First District Court of Appeals after Ohio Senate Bill 27 was passed in 2020, requiring the burial of fetal or embryonic remains after an abortion.
The bill was almost immediately taken to court, and a Hamilton County Court of Common Pleas judge blocked the law.
The appellate court upheld most of the trial court’s decision, striking down all but two provisions of the law.
S.B. 27 was passed to require clinics that conduct abortion to cremate and inter fetal tissue or remains from an abortion at their own cost.
The law also created criminal liability for facilities conducting abortions who violated the law, and said surgical abortions couldn’t occur without clinicians first notifying the pregnant person of their right to choose the method of remains disposal.
Exceptions in the case of medical emergency were included in the law.
But the law was written before Ohio voters amended the state constitution to protect the right to abortion and other reproductive health.
The amendment passed by 57% of voters in 2023 also barred the state from creating any measure that would “burden, penalize, or discriminate against” those wanting an abortion or helping others receive one.
In the case of the fetal remains law, the appellate court pointed to the constitutional amendment, particularly the provisions that specifically mentioned abortion.
“As written, subsection (A) of the Reproductive Freedom Amendment sets forth the affirmative right to an abortion for all individuals,” the three-judge panel stated in its decision last week.
The judges went on to say, “Ohio voters said what they meant.”
In its appeal, the state of Ohio argued that the law focused specifically on actions after an abortion was completed, therefore was not in conflict with the constitutional amendment.
The court disagreed with the state, saying that though the actions did occur after the fact, they were directly connected to the abortion and thus protected under the rights given in the Ohio Constitution, including from overly restrictive state measures.
“The plain language of the amendment applies to government action that affects all phases of reproductive decision-making, including discrimination that might occur after a procedure,” the decision stated.
“The mere fact that S.B. 27 regulates conduct occurring after an abortion does not remove it from the scope of the Reproductive Freedom Amendment.”
While the appeals court judges agreed with the Hamilton County court that the law flies in the face of the state constitution, they disagreed that the entire law should be thrown out.
The ruling allowed the state to keep two provisions of the law, one that updates the definition of the term “probable gestational age” to include the terms “zygote” and “blastocyte,” and another that requires a physician to create individual abortion reports for the Ohio Department of Health to include abortions involving these “organisms.”
The provision also requires the department to include “zygotes” and “blastocytes” in its data on abortions.
Amid its decision largely against S.B. 27, the three-judge panel noted that the constitutional amendment does give the right to abortion, but does not make that right “absolute.”
The court ruling said that while the amendment “significantly constrains the state’s ability to regulate in the field of abortion,” it also clearly allows the state to retain authority “to enact abortion related statutes, so long as it can demonstrate that doing so is ‘the lease restrictive means to advance the individual’s health in accordance with widely accepted and evidence-based standards of care,’” quoting language from the amendment itself.
The court also noted amendment language that bans abortion up to fetal viability, a provision of the amendment that specifies viability should be determined by an individual’s physician.
“These two exceptions carve out significant space for the state to operate,” the ruling stated. “And the voters approved the amendment with the specific understanding that the state had some leeway to regulate and even ban abortion going forward.”
Still, the judges said the amendment’s core purpose was to “protect reproductive decisions and activities from state interference absent a real health and safety concern.”
Anti-abortion organization Ohio Right to Life criticized the decision, claiming the amendment “is being used far beyond what any voter would imagine.”
“It’s unfortunate, but not a surprise, that the First District Court of Appeals sided with the abortion industry to stop Ohio’s fetal remains law from taking effect,” wrote Ohio Right to Life Executive Director Carrie Snyder.
The ACLU of Ohio represented reproductive health clinics in the case, and praised the decision as “yet another historic application” of the constitution amendment.
“While this law has not been in effect for years, today’s ruling will allow our clients to focus on providing essential health care without further interference from the state,” said Jessie Hill, cooperating attorney for the ACLU of Ohio.