The U.S. Supreme Court’s decision to give states ultimate jurisdiction over abortion could make, and likely will make, this year’s Ohio Supreme Court races even more lively than they already were destined to be. It’ll also stir up the General Assembly. That’s because a newly filed court case, backed by abortion clinics, may rank abortion front-and-center among the Ohio high court’s key issues when Ohioans elect or re-elect three state Supreme Court justices this November.
The starting gun went off last Wednesday when Ohio abortion providers filed a state Supreme Court suit seeking to overturn Ohio’s so-called “heartbeat bill.” (On Friday, the court refused an immediate stay of the bill.) That measure forbids abortion after about six weeks of pregnancy, at a time when a woman may not even know she is pregnant — that is, it forestalls women’s options.
Before Ohio’s heartbeat bill took effect, when a federal stay was lifted June 24 — the same day the U.S. Supreme Court spiked Roe v. Wade — abortion was legal in Ohio until 22 weeks into a pregnancy, the plaintiffs’ complaint says. One argument Wednesday’s lawsuit makes is that part of the Ohio Constitution — adopted, ironically but ineffectively, to block the Affordable Care Act (“Obamacare”) — forbids Ohio to interfere in women’s health care decision-making.
The amendment, adopted by Ohio voters in 2011, had zero effect on Obamacare. But its official heading says it’s aimed at the “preservation of the freedom to choose health care and health care coverage.” And its text says, “No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance … (or) impose a penalty or fine for the sale or purchase of health care or health insurance.” Thus, the pro-choice plaintiffs argue in Wednesday’s lawsuit, the amendment “expressly provides for the protection of individual autonomy in medical decision-making,” something the heartbeat bill clearly blocks.
How that argument will fare with Ohio’s Supreme Court is an open question. Officially, judicial candidates in Ohio don’t have opinions about anything much beyond the weather. The court now has four Republican justices and three Democratic justices, with retiring Republican Chief Justice Maureen O’Connor a swing vote in some cases. That is, in this year’s judicial jousting over Republican gerrymandering of General Assembly districts by the GOP-run Ohio Redistricting Commission, O’Connor sided with the high court’s three Democrats.
In any event, O’Connor is retiring. Vying to succeed her are Justices Jennifer Brunner, a Democrat, and Sharon Kennedy, a Republican. The Cincinnati Enquirer has reported that “in a 2014 questionnaire for Greater Cincinnati Right to Life, Kennedy agreed with the statements: ‘an unborn child is biologically human at every stage of his or her biological development, beginning at fertilization.’”
Also on this November’s Supreme Court ballot are incumbent Republican Justices R. Patrick “Pat” DeWine and Patrick Fischer. Challenging Pat DeWine is Democratic 1st Ohio District Court of Appeals Judge Marilyn Zayas of Cincinnati. Challenging Fischer is Democratic 10th Ohio District Court of Appeals Judge Terri Jamison of Columbus. In March, the Ohio Right to Life PAC endorsed Kennedy for chief justice and DeWine and Fischer for re-election as justices.
The federal Supreme Court’s decision transferred the anti- and pro-abortion wars to state capitols. And given the passionate beliefs all sides have in the abortion debate, partisanship that engulfs the Ohio Statehouse will likely intensify thanks to the federal high court’s ruling that makes states the arenas for deciding if and when to allow abortion.
That’s all the more true given that no sooner will 2022 elections be decided than 2024 will beckon, because a Senate seat (Democrat Sherrod Brown’s) will be on that year’s ballot — and the Statehouse is Ohio’s soapbox. Moreover, if Republican Gov. Mike DeWine is re-elected this year — his Democratic challenger is former Dayton Mayor Nan Whaley — he’ll be a lame duck, because Ohio forbids anyone to serve for more than two consecutive terms as governor.
Although Republican Lt. Gov. Jon Husted is DeWine’s heir-apparent, nothing can be certain in a Statehouse whose term-limited legislators confront two key questions: What’s my next job? And how can I grandstand enough to land it?
Mark your ballots: Early voting began Wednesday in Ohio’s Aug. 2 primary election for General Assembly seats.
