How the U.S. Supreme Court's Indiana abortion decision could affect Ohio - cleveland.com

COLUMBUS, Ohio –Ohio’s anti-abortion movement is encouraged by the U.S. Supreme Court upholding an Indiana law that requires burial or cremation of fetal remains because a similar law is moving forward in the Ohio General Assembly.

But the high court chose not to rule on an Indiana law that bars women from having an abortion based on a fetus’ gender, race or disability. That law more directly affects the future of Roe v. Wade, which grants women the right to an abortion.

Abortion-rights supporters are relieved that the court -- at least for now -- seems uninterested in taking on that larger issue.

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Mike Gonidakis, president of Ohio Right to Life, said that the court’s ruling on Indiana’s cremation and burial law shows that justices see fetuses as having humanity.

“They’re sending a strong signal that this is the most pro-life court in a generation," he said. "It is a slam dunk? No, but we truly have a puncher’s chance for the first time in a generation at the Supreme Court. What we continue to do is bring home the fact that this is an unborn child.”

Jessie Hill, a Case Western Reserve law professor and attorney representing abortion providers in many Ohio legal challenges, said she has suspected the Supreme Court won’t take on Roe v. Wade for the next year or two.

“It refused again to ask any bigger questions about the right to abortion that were implicated there,” she said. "I think the court is not anxious to take the issue. It certainly could have gone otherwise; it could have taken both issues. It could have written a big opinion. It could have reconsidered Roe.”

Ohio’s fetal burial and cremation measure is Senate Bill 27. The abortion provider has to dispose of the remains, or face criminal prosecution.

The bill has passed the Ohio Senate. It’s currently under consideration in a House committee.

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Under Senate Bill 27, women would decide in writing whether to have fetal remains buried or cremated after a surgical abortion. Abortion providers could face a first-degree misdemeanor for not following the requirement.

“I am pleased with the U.S. Supreme Court’s ruling supporting the ethical and dignified treatment of fetal remains,” said SB 27′s sponsor, Cincinnati-area Republican Sen. Joe Uecker, in a statement.

Freda Levenson, legal director for the ACLU of Ohio, said that the U.S. Supreme Court’s ruling on the Indiana case was narrow. It just answered the question of whether there is a legitimate state interest in regulating disposal of fetal tissue.

If the Ohio General Assembly passes HB 27, the state’s abortion providers could sue over it, forcing a court to answer another common question brought up in abortion lawsuits: whether the law would be an “undue burden" on women seeking abortions, she said.

“We would hope that question would be answered differently because it is a burden," she said. “It’s a huge expense, which would increase the cost of abortions.”

There is a court challenge in Ohio over a law somewhat like Indiana’s “discrimination” abortion ban, except it prohibits abortion only if the fetus has Down syndrome and that’s the reason a woman is choosing to end the pregnancy.

In January, a three-judge panel on the 6th Circuit Court of Appeals heard arguments on the Down syndrome ban. The court hasn’t yet released its ruling.

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The U.S. Supreme Court on Tuesday didn’t touch Indiana’s law, which was overturned by the 7th Circuit Court of Appeals -- a different appellate region that doesn’t cover Ohio.

Depending on how the 6th Circuit rules on Ohio’s Down syndrome ban, there could be a split with the 7th Circuit --which means the U.S. Supreme Court may take an Ohio case to resolve the differences of legal opinion.

If the 6th Circuit tosses out Ohio’s Down syndrome ban, which Levenson of the ACLU of Ohio believes it will do, then there would be no conflict or reason for the Supreme Court to look at the ban again.

Separately, there is a lawsuit over the constitutionality of the fetal “heartbeat” abortion ban, which, if it goes into effect, would outlaw abortion in Ohio at around six weeks -- before many women know they’re pregnant.

The fetal heartbeat lawsuit was filed roughly 10 days ago. The legislature passed the bill in April and Gov. Mike DeWine signed it shortly after that.

The ACLU of Ohio, Preterm-Cleveland and others are suing for a preliminary block to the law, which goes into effect July 11. Then the plaintiffs want a permanent block. The state is fighting to defend the law.

The federal trial court has agreed to plaintiffs’ request of no oral arguments. It has set a briefing schedule for each side and will decide, based on those submitted legal arguments, whether to grant a preliminary block by July 11, said Levenson, of the ACLU of Ohio.

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