Thursday, September 22, 2022
Ohio Court Grants TRO Blocking Six Week Abortion Ban on Grounds of State's Health Care Freedom Amendment
I've been writing an essay for the Journal of Law, Medicine & Ethics on how state so-called Health Care Freedom Acts and Amendments enacted as symbolic protests to the individual insurance mandate of the federal Affordable Care Act provide an arguable basis for a recognized state right to abortion. The essay was a lot harder to write before last week, when the Ohio court rule on these grounds.
A Hamilton County judge overseeing a lawsuit challenging Ohio’s “heartbeat” abortion ban plans to issue a second order temporarily blocking the law, according to a lawyer involved in the case.
Judge Christian A. Jenkins, a Democrat, last week issued what’s called a temporary restraining order, pausing the law from being enforced for 14 days while he deals with arguments in the case.***
Once the second order comes, Ohio abortion clinics will be able to provide abortions up until 22 weeks from a woman’s last menstrual period at least through Oct. 12. That would extend the pause until after an Oct. 7 hearing Jenkins has scheduled for a more permanent order blocking the law while both sides argue their case.***
Jenkins has indicated he plans to rule in favor of abortion advocates, agreeing with their arguments that equal-protection guarantees contained in Ohio’s constitution covers the right to obtain an abortion. He noted a 1993 decision from a state appellate court that found the Ohio Constitution confers greater abortion rights than the U.S. Constitution, including a broad scope of the meaning of “liberty.”
The full opinion is here: Preterm Cleveland v. Yost (Ohio C.C.P. Sept. 14, 2022) (TRO Decision)
No great stretch is required to find that Ohio law recognizes a fundamental right to privacy, procreation, bodily integrity and freedom of choice in health care decision making. In 2011, the Ohio Constitution was amended by popular referendum to adopt the Health Care Freedom Amendment (Article I, Section 21) (“HCFA”). The plain language of subsections B and C of the HCFA is simple and clear: (B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance. (C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.
The State Defendants argue that the HCFA was intended by its drafters to provide a legal basis for Ohio and Ohioans to undermine or avoid the federal Affordable Care Act, not to outlaw health care regulation in Ohio. They point to the language in subsection (D) providing in pertinent part that “[t]his section does not . . . affect any laws calculated to deter fraud or punish wrongdoing in the health care industry” to suggest that the Amendment does not render health care regulations unconstitutional. But this misses the point – as a result of the HCFA, the Ohio Constitution contains a direct recognition of the fundamental nature of the right to freedom in health care decisions.
The fact that no one has yet challenged any existing health care regulations under the HCFA does not negate the import of its plain language.10 The HCFA does not define “health care,” but the use of the disjunctive “or” renders the term separate and distinct from the purported target of the amendment – health insurance. Abortion, whether procedural or medication, clearly constitutes health care within the ordinary meaning of that term. Moreover, the drafters could have excluded existing and future regulation of the health care profession, or even abortion specifically, but they did not.
Rather, the exception in subsection D is limited to fraud and the nebulous term, “wrongdoing,” without providing any definitional or interpretive guidance. Wrongdoing is defined as “illegal or improper conduct.” Black’s Law Dictionary 1932 (11th Ed.2019). At the time of the HCFA’s adoption in 2011, abortion had been constitutionally protected as the law of the land for nearly 40 years, and could hardly be considered “wrongdoing.” Finally, S.B. 23 was adopted years after the HCFA such that the General Assembly was presumably aware of its provisions recognizing a fundamental constitutional right to choice in healthcare decisions.
This Court cannot simply ignore part of Ohio’s Constitution because the Ohio Attorney General asserts it is not germane to this case. Nor must the Court defer to the General Assembly on questions of law such as those presented in this case, for “’[i]t is emphatically the province and duty of the judicial department to say what the law is.’ Our function here is to determine whether the act transcends the limits of legislative power.” Adams v. DeWine, __ Ohio St. 3d __, 2022-Ohio-89, ¶ 28 (rejecting Congressional district plan adopted by General Assembly in contravention of Ohio Constitutional amendment enacted by popular referendum); citing Marbury v. Madison, 5 U.S. 137, 177, 2 L. Ed. 60 (1803).
The HCFA represents an express constitutional acknowledgement of the fundamental nature of the right to freedom and privacy in health care decision making. Read together with other applicable sections of the Ohio Constitution, a clear and consistent recognition the fundamental nature of this right under Ohio law emerges. See e.g. Planned Parenthood Southwest Ohio Region v. Ohio Dept. of Health, Hamilton C.P. No. A 2100870, p. 6 (Jan. 31, 2022) (“Deprivation of reproductive autonomy falls squarely within the meaning of an injury done to one’s person under the Ohio Constitution”), citing Stone v. City of Stow, 64 Ohio St. 3d 156, 160-163, 593 N.E.2d 294 (1992). Accordingly, this Court recognizes a fundamental right to abortion under Ohio’s Constitution.