COLUMBUS — A judge on Monday temporarily blocked enforcement of an Ohio law that would require fetal remains from surgical abortions to be cremated or buried, agreeing that a lack of rules makes complying unworkable for clinics.
Hamilton County Common Pleas Judge Alison Hatheway’s decision came a day before the law was set to take effect in a case brought by a group of clinics that argued a lack of rules, including whether a death certificate would be required, made complying with the law “impossible.”
In a ruling from the bench, Hatheway also went further — barring the state from enforcing the law’s new penalties against abortion providers until 30 days after rules are set.
“Without the required rules and forms in place, the plaintiffs will be forced to stop providing procedural abortions because of a real threat of sanctions and penalties independent from criminal prosecution,” the judge said. “This substantially interferes with, if not denies, the plaintiffs’ patients’ rights to access abortion under the Ohio Constitution.”
The law would replace an earlier Ohio law requiring aborted fetuses to be disposed of “in a humane manner,” but without defining “humane.” Abortion opponents had argued that the new language assures human dignity, while abortion rights groups called it another effort by the state’s Republican-led Legislature to obstruct a legally available procedure.
The state argued during Monday’s hearing that the new law is not a ban on abortion.
“The only way that it has the effect of a ban on April 6 is under the plaintiffs’ erroneous factual and legal assumption that they will have to preemptively stop all abortions because of a lack of affirmative assurances (against prosecution),” said attorney Andrew McCartney, representing the Ohio Department of Health.
Hatheway’s temporary block will stand as arguments proceed in the the lawsuit, which names the state Health Department and others, over the permanent fate of the law. Clinics and lawyers at the ACLU of Ohio argue the law is an unconstitutional hurdle to women’s legal right to an abortion, as well as “frivolous and medically unnecessary.”
Mai Ratakonda, a lawyer for Planned Parenthood who spoke for that organization and the other clinics — Preterm-Cleveland, Women’s Med Group and Northeast Ohio Women’s Center — told the judge Monday that a public records request revealed rules have been in development for months and the state appeared ready to release them on an emergency basis Tuesday — without input from clinics and funeral directors through a public rule-making process.
The suit noted that it’s unclear whether elements of existing regulations on the disposal of human bodies might apply under the new law, for example, such as whether burial of fetal remains will require a death certificate and burial permit. A form required under the new law has not yet been released to record that each woman has been notified and whether she’s chosen burial or cremation.
With the new law paused, remains from what are known as surgical, or procedural, abortions fell under existing rules for handling infectious waste, meaning they could be disposed of with material from other medical procedures.
Were it to go into effect, the suit said the new law would be “a sea-change in how (clinics) manage tissue.”
Republican Gov. Ohio Mike DeWine signed the fetal tissue measure into law in December with abortion foes calling it a “vital piece of pro-life legislation” that assured human life was treated with dignity.
It is one of several recent Ohio laws that ban certain abortion procedures or ban access to abortions in certain cases, and the fetal remains law is the first of those not to be blocked by the courts when challenged. The three others laws judges have blocked are: a ban on on dilation and evacuation, or D&E, abortions; a ban on abortions in cases where a fetal Down syndrome diagnosis is a factor; and a ban on all abortions after detection of the first fetal heartbeat, which can occur as early as six weeks into pregnancy before many women know they are pregnant.
Planned Parenthood sued Thursday to block a fifth law that bans administering medication abortions via telehealth appointments.