COLUMBUS — Ohio Attorney General Dave Yost joined 23 other state attorneys general in urging the U.S. Supreme Court to overturn the Roe v. Wade decision in a case over a Mississippi law that bans most abortions after 15 weeks.
The attorneys general, in a legal brief, argue that the Supreme Court over the years hasn’t been able to explain the constitutional right to an abortion. Nor has it provided a consistent legal standard for determining when the right to an abortion is violated by a state law, the brief states.
If the court agrees with the attorneys general and Mississippi, it could overturn the landmark 1973 Roe decision, which would leave abortion regulations to the states. Ohio, with a Republican supermajority in the General Assembly, would almost certainly outlaw abortion in the state.
“The jurisprudence of abortion has become like the 1960s fights over pornography — no one can say exactly what’s allowed and what’s not,” Yost said in a Wednesday evening statement. “It’s like Justice Potter’s definition of pornography: ‘I know it when I see it.’ It’s time to end this failed experiment in judicial law-making and return the matter to the States.”
The U.S. Constitution doesn’t directly reference abortion, and until the Roe case, women’s abortions were generally regulated by state law. Under the Roe decision, the court said it was guaranteed under five separate amendments to the U.S. Constitution, such as the Fourteenth Amendment’s due process clause that guarantees personal privacy, including the right for a woman to decide whether to deliver a child.
The brief describes evolving judicial opinion on abortion rights.
After Roe, the next landmark abortion case was Planned Parenthood v. Casey in 1992, which created a test on whether a state or federal law creates an “undue burden” on women seeking abortions. If a law created a “substantial obstacle” to a woman getting an abortion, it was unconstitutional, the court ruled.
Yost and the other attorneys general describe split courts and disagreement on the bench over abortion rights over the years.
Yet abortion remains controversial in the U.S., with many people believing it should be done away with, the brief states.
“Time has not lessened the belief that unborn life deserves protection,” the brief says. “People of good conscience will always disagree on this issue, and the Court’s attempt to settle it has failed. Moreover, the Court’s continuing vacillation over the constitutional test and the creation of new, abortion-specific rules have only made matters worse.”
In response to the filing, NARAL Pro-Choice Ohio Executive Director Kellie Copeland said: “It’s not Dave Yost’s place to decide for someone else whether they should be able to get an abortion. If the U.S. Supreme Court listens to Yost and allows states to ban abortion, the harm will fall hardest on people who are already marginalized by our health care system, including women of color, young people, and transgender and non-binary people. The majority of Ohioans believe that when someone decides to have an abortion, it is critical that they are able to get that care in their community without stigma, political interference or delay. Dave Yost’s values are not Ohio values.”
The Supreme Court in May agreed to hear the Mississippi case. The case is significant since former President Donald Trump appointed three conservatives to the court.
The case will be heard this fall.