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Ohio law banning nearly all abortions now invalid after referendum, attorney general says

A 2019 law banning most abortions in Ohio is unconstitutional following an abortion referendum last year, the state's Republican attorney general said in a court filing Monday.

The filing comes after abortion clinics asked a Hamilton County judge to throw out the law since Ohio voters decided to enshrine abortion rights in the state constitution last November.

They argue that under the new constitutional amendment, the law, which bans most abortions once fetal cardiac activity can be detected, is invalid. Attorney General Dave Yost, for the most part, agreed.

However, the attorney general asked the court to only strike down the “core prohibition” of the law — banning abortions after six weeks — and let other portions remain. These include requiring a doctor to check for a heartbeat and inform a patient, as well as documenting the reason someone is having an abortion. Yost said in the filing that the plaintiffs have not demonstrated how such provisions violate the constitutional amendment.

The state “respects the will of the people,” a spokesperson for Yost's office said in an email, but is also obligated to prevent overreach and protect parts of the law the amendment doesn't address.

Freda Levenson, legal director of the American Civil Liberties Union of Ohio, called the continued litigation “quibbling about extraneous matters” in an emailed statement, and disagreed that such issues have ever been a problem before in this case.

“This case should be over. Stick a fork in it,” she said in the statement.

The law signed by Republican Gov. Mike DeWine in April 2019 prohibited most abortions after the first detectable “fetal heartbeat.” Cardiac activity can be detected as early as six weeks into pregnancy, before many women know they are pregnant.

The ban, initially blocked through a federal legal challenge, briefly went into effect when the landmark 1973 Roe v. Wade decision was overturned in 2022. It was then placed back on hold in county court, as part of a subsequent lawsuit challenging it as unconstitutional under the Ohio Constitution, eventually reaching the state Supreme Court.

In December 2023, the state's highest court dismissed an appeal brought by Yost's office " due to a change in the law.” This sent the case back to the lower courts, where it now resides.

The case now awaits a decision by Hamilton County Court of Common Pleas Judge Christian Jenkins.

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Samantha Hendrickson is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.