Most people recognize that the proper place to sort out legal disputes is in the courtroom.
This bit of constitutional and conventional wisdom appears to be lost on a few hard-right members of the Ohio General Assembly, who have introduced a bill that would strip state courts of the power to decide abortion cases.
House Bill 371 would instead shift that responsibility to the Republican-controlled General Assembly.
Any new or existing legal actions or decisions seeking “to enforce or implement” Issue 1 would be dismissed or vacated were the bill to become law. Additionally, any judge who did rule on a legal dispute involving abortion could face impeachment.
This terrible idea is a direct attempt to undermine the will of the nearly 57 percent of Ohio voters who in November cast their ballots in favor of Issue 1, enshrining abortion and other reproductive rights into the Ohio Constitution.
State Reps. Bill Dean, R-Xenia, and Jennifer Gross, R-West Chester, dubbed their bill the “Issue 1 Implementation Act,” even though it’s obvious the bill is designed to do the opposite.
When Dean, Gross and a handful of other lawmakers first floated the idea of having lawmakers, rather than judges, oversee Ohio’s abortion laws shortly after the November election, they weren’t exactly subtle in their reasoning.
Here’s how they described the idea in a news release at the time: “To prevent mischief by pro-abortion courts with Issue 1, Ohio legislators will consider removing jurisdiction from the judiciary over this ambiguous ballot initiative. The Ohio legislature alone will consider what, if any, modifications to make to existing laws based on public hearings and input from legal experts on both sides.”
By “mischief” they appear to mean courts ruling in accordance with the state Constitution.
That’s what the Ohio Supreme Court did in the wake of Issue 1’s passage when it dismissed a challenge from state Attorney General Dave Yost, a Republican, to a preliminary injunction that has prevented enforcement of the state’s so-called heartbeat bill.
The court cited a “change in law” in kicking the case back down to the lower courts for further review. It doesn’t take a law degree to realize that the heartbeat bill runs afoul of the new amendment and should be ruled unconstitutional.
Signed in 2019 by GOP Gov. Mike DeWine, it banned abortion in almost all cases after a fetal heartbeat could be detected, usually around six weeks, before many women even know they’re pregnant.
Fortunately, House Speaker Jason Stephens, R-Kitts Hill, didn’t appear enthusiastic about the idea of stripping the judicial branch of power.
“This is Schoolhouse Rock type stuff,” Stephens said in November, according to the Ohio Capital Journal. “We need to make sure that we have the three branches of government, and the Constitution is what we abide by.”
Stephens is correct on that point.
It’s important to remember that Stephens is not some secret progressive who favored putting abortion rights into the Ohio Constitution. He, along with most other elected Republicans, vehemently opposed it.
Additionally, he supported another proposed constitutional amendment that would have made changing the state Constitution harder, an idea voters rejected in an expensive special election held in August. (The whole point of that exercise was to make it more difficult to put abortion protections in the Constitution.)
Beyond that, Stephens, along with Senate President Matt Huffman, R-Lima, suggested in November that there would be future efforts to roll back or change the amendment voters had just approved.
Given Ohio voters’ clear preference for abortion rights, we doubt such efforts would be successful, but they would at least be in keeping with the how the system is supposed to work.
What Dean, Gross and their allies have proposed is a way to circumvent not only the will of the people, but the state Constitution itself.
The idea is not only undemocratic; it’s unconstitutional.
