Judge permanently blocks Ohio law on disposal of aborted fetal remains
COLUMBUS, Ohio (AP) — An Ohio law requiring fetal or embryonic remains from surgical abortions to be cremated or buried violates the constitutional amendment protecting reproductive rights that the state’s voters approved in 2023, a judge ruled in permanently blocking the law.
The decision last week by Hamilton County Judge Alison Hatheway came in a case brought by a group of clinics and the ACLU of Ohio. An earlier iteration of the legal challenge had argued that a lack of rules, including whether a death certificate would be required, made complying with the law “impossible.”
The law, passed in 2020, was intended to replace existing Ohio law, which requires aborted fetuses to be disposed of “in a humane manner” but does not define “humane.”
Abortion opponents had argued that the replacement language assured human dignity in such cases, while abortion rights groups called it another effort by the state’s Republican-led Legislature to obstruct a legally available procedure.
“If S.B. 27 were allowed to go into effect, it would severely impede access to abortion resulting in delayed or denied health care,” Hatheway wrote in her decision. The judge said it was “clear why the state has been silent” in its defense of its arguments in favor of keeping portions of the Senate bill, because it “simply does nothing to serve patient health.”
The judge rejected the state’s argument that the law, if allowed to take effect, would only have affected fetal tissue and not abortion access. She noted that the bill called for providers to inform abortion seekers of the requirement before obtaining the procedure, as well as requiring them to establish relationships with crematory facilities and funeral homes that don’t currently exist.
Hatheway’s block stands to end a legal fight that began in 2021, naming the Ohio Department of Health and others, in which clinics and lawyers at the ACLU argued the law presented an unconstitutional hurdle to women’s legal right to an abortion, as well as “frivolous and medically unnecessary.”
Those earlier constitutional arguments were upended in 2022, when the U.S. Supreme Court overturned the landmark 1973 Roe v. Wade decision that had protected abortion rights. It was that ruling that set off a series of fights in the states — including in Ohio — to protect the procedure in state constitutions.
As a result of the new ruling, remains from what are known as surgical, or procedural, abortions will continue to fall under Ohio’s existing rules for handling infectious waste, meaning they could be disposed of with material from other medical procedures.
“While this law has been temporarily blocked for years, we are relieved that the order is now final so our clients can move forward and focus on providing essential healthcare,” ACLU cooperating attorney Jessie Hill said in a statement. “We celebrate this ruling as yet another testament to the power of Ohio’s new Reproductive Freedom Amendment.”
Kellie Copeland, executive director of the pro-abortion rights group Abortion Forward, also praised the ruling. She said in a statement that the law was not about providing abortion seekers with options but about “discriminating against and shaming patients who choose to have an abortion and the medical professionals who provide abortion care.”
Republican Ohio Gov. Mike DeWine signed the fetal tissue measure into law in December 2020. At the time, Ohio Right to Life President Michael Gonidakis — whose group championed the measure — said it was only decent to require “the broken bodies of abortion victims to be humanely buried.”
This is now just one of numerous Ohio abortion laws that courts have blocked as a result of the 2023 amendment.
In August, Franklin County Judge David C. Young temporarily blocked several state laws that combined to create a 24-hour waiting period for obtaining an abortion in the state. Then, in September, Hatheway blocked two more abortion laws impacted by the vote: a ban on the use of telemedicine for medication abortions and one prohibiting non-doctors — including midwives, advanced practice nurses and physician assistants — from prescribing the abortion pill mifepristone.
In October, Hamilton County Judge Christian Jenkins struck down Ohio’s most far-reaching abortion law, a ban on most abortions after detection of the first cardiac activity, which can occur as early as six weeks into pregnancy, before many women know they are pregnant.
All three of those decisions are being challenged.
By JULIE CARR SMYTH
Associated Press
