Ohio Appeals Judge’s Renewed Order Blocking Abortion Ban

In continued litigation of Ohio’s abortion ban, which criminalizes doctors performing abortions after fetal cardiac activity is detected, Ohio state judge Christian Jenkins followed up his September 14, 2022 temporary restraining order (TRO) with a 42-page order on October 12, 2022 that continues to enjoin enforcement of Ohio’s abortion ban. This preliminary injunction, like the TRO before it which expired on the same day, will bar enforcement of the ban during the ensuring underlying litigation over constitutionality of the law. Judge Jenkins’ October 12 order reinforced the position he had taken in his TRO, that abortion rights are protected in Ohio per the equal protection and due process clauses of Ohio’s Bill of Rights, along with a 2011 constitutional amendment permitting Ohioans to choose their own health care. In remarks from the bench, Judge Jenkins said further that the state failed to prove that the ban is narrowly tailored enough not to infringe on those rights, saying instead that the law is written “to almost completely eliminate the rights of Ohio women. It is not narrowly tailored, not even close.”

The State of Ohio, through its Attorney General Dave Yost, filed a notice of appeal to Judge Jenkins’ order, up to Ohio’s First District Court of Appeals, also on October 12, likely prepared to do so after Judge Jenkins had announced from the bench five days earlier what his decision would be, after an evidentiary hearing in his court on October 7. Although Ohio’s brief is not yet available, the state has said previously that certain exceptions in the law allow providers to rely on their own sound medical judgment, and it has argued there was nothing in Ohio's legislative history, before or after Roe was decided in 1973, that shows an inclination toward legalizing abortion by Ohio state lawmakers.

As of now, however, with Judge Jenkins’ preliminary injunction in place barring enforcement of Ohio’s ban, it is legal in Ohio for doctors to perform abortions until 22 weeks of pregnancy. Shipman & Goodwin previously covered Judge Jenkins’ TROs here.

As new developments arise, we will continue to update our Dobbs Decision Resource Center. In the meantime, if you have any questions, please contact one of the lawyers in Shipman’s Health Law Practice Group.