Attorneys argue for and against Ohio 24-hour abortion care waiting period pause

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Attorneys challenging Ohio’s 24-hour abortion waiting period and minimum in-person visit regulations made their arguments Friday as to why enforcement of the laws should be paused as they fight to get them eliminated entirely.

Jessie Hill represented the ACLU of Ohio, the Planned Parenthood Federation of America, abortion clinics, and a physician in the Franklin County case, and said the constitutional amendment passed last November that legalized reproductive rights statewide “is expansive and clear,” protecting the rights that she says the state laws hinder.

“Being prevented from doing something that you want to do and have a legal entitlement to do is injury, if prevented by a law that provides sanctions,” Hill told Judge David Young during a preliminary injunction hearing.

Based on arguments heard at Friday’s hearing, the judge will decide whether a 24-hour waiting period and a minimum of two in-person visits will continue to be required before abortion services can be provided as the lawsuit continues.

The law challengers are entitled to a preliminary injunction “because the challenged requirements facially discriminate against abortion patients and providers,” Hill said.

Hill claimed that the state does not disagree that the courts must apply the amendment to “test” other laws in place regarding abortion. She went on to cite the legal analysis Ohio Attorney General Dave Yost released prior to the November election, in which he explained the impact the amendment would have on abortion services throughout the state.

In that analysis, which Yost wrote was “designed only to describe what the legal effects of Issue 1 will be on our state,” he listed several laws that “I expect will most certainly be challenged at some point,” and said the amendment “would create a new standard  … and will make it harder for Ohio to maintain the kinds of law already upheld as valid prior to (2022’s) decision in Dobbs.”

“In other words, the amendment would give greater protection to abortion to be free from regulation than at any time in Ohio’s history,” Yost wrote.

The 24-hour waiting period was one law listed in his legal analysis and potentially impacted by the amendment, along with “informed consent” laws.

“It is possible to foresee a court decision that said a waiting period was a ‘burden,’ but that informed consent is not,” Yost wrote. “If so, neither provision would be likely to survive the ‘exclusive scrutiny’ test.”

Yost also notes that the state “can regulate only for the purpose of” advancing a pregnant individual’s health.

“That means that the state cannot regulate for any other purpose or interest at all, no matter how mild the regulation,” Yost wrote. “So the long-recognized interests in fetal life or in medical ethics cannot be protected, making the laws previously upheld on those grounds no longer valid, even if the interests rise to the level of ‘compelling.’”

The attorney general has since changed his tune, fighting against lawsuits that seek to undo the laws, and saying abortion clinics can’t challenge laws like the 24-hour waiting period regulation.

The Attorney General’s Office argued Friday that taking away enforcement of the laws would be the opposite of the goal of a preliminary injunction, which is to keep the “status quo,” according to Amanda Narog, senior legal counsel for the AG’s office.

“We’re talking about upwards of three decades of law that has regulated the conduct of abortions in this state,” Narog told the judge.

But Hill pushed back, saying the status quo had changed when voters approved the reproductive rights constitutional amendment and it went into effect in December 2023. Therefore, of course the laws they consider in violation of the amendment would be challenged.

“That was the whole purpose of the amendment,” Hill said.

The state “can regulate the practice of medicine in Ohio,” Narog argued, and pointed to Hill’s arguments that physicians provide informed consent (in abortion care and in any other sector of medicine) because of their medical training, and will continue to do so no matter what the law states.

The attorney general’s office didn’t fight back against the language of the amendment and its weight in the state, even as Narog argued that the 24-hour waiting period and the in-person requirements should stay in place.

“It is well known that women have a right to a pre-viability abortion under the Ohio Constitution,” Narog said. “There’s no reason to think that women can’t do it.”

Young did not give a timeline on when he might render his decision on the preliminary injunction or a motion to dismiss that the state filed.