The ACLJ has filed a friend-of-the-court brief on behalf of two Ohio state representatives (in their individual capacities) designed to salvage the bulk of a pro-life bill the representatives supported and which the ACLJ helped draft.
The Ohio Heartbeat Protection Act, SB 23, contained more than a dozen provisions adding to, or amending, Ohio’s abortion laws. For example, this bill:
Ohio abortionists sued in federal court, in Preterm-Cleveland v. Yost, focusing exclusively on the provision that got the most publicity, namely, the ban on abortion after a heartbeat has been detected. The district court granted a preliminary injunction against the measure, as we explained earlier. Notably, the federal district court’s order was phrased as enjoining “SB 23” – which would be the entire bill – rather than just the heartbeat ban section of the enacted law. This makes little sense, as the abortionists did not challenge any of the other provisions.
The abortionists followed up with a motion for judgment on the pleadings, which means they asked the district court to rule in their favor without any further proceedings, such as presentation of evidence. That motion is pending.
The ACLJ decided, in consultation with the legislative sponsors of SB 23 and its House companion bill, that someone needed to alert the federal district court to the overreach of its preliminary injunction (and potential overreach of its upcoming ruling on judgment on the pleadings). So on May 6th we filed legal documents to accomplish that. On behalf of Ronald Hood and Candice Keller, both members of the Ohio House of Representatives and sponsors of the House companion bill to SB 23, we filed a request for leave to submit an amicus brief, along with a supporting legal memo and the proposed amicus brief itself. As we explained:
The current lawsuit includes a challenge to part of the broader legislative package adopted in SB 23, namely, the ban on abortions after detection of fetal heartbeat enacted as Sec. 2919.195(A). . . . Amici have a keen interest in seeing that as much of their legislative handiwork as possible be upheld and allowed to go into effect. . . .
The plaintiffs in the present case did not challenge any of [SB 23’s] provisions, aside from the ban on post-heartbeat abortions in Sec. 2919.195(A). Testing for prenatal heartbeats, for example, was required by preexisting Ohio law, and plaintiffs do not argue that any of the amendments or additions to that requirement violate the Constitution. Neither plaintiffs’ complaint nor their briefing on the motions for TRO, preliminary injunction, or judgment on the pleadings, nor this Court’s preliminary injunction order, purport to find fault with any provision of SB 23 aside from the post-heartbeat ban section. Hence, there is no reason these other important measures, such as the foster care and adoption initiatives fund, should not go into immediate effect.
As we add in the proposed brief:
While amici would prefer to have the legislation enacted in SB 23 take effect in its entirety, at a minimum the many valuable other provisions of this important legislation should be operational, and operational right now.
We are hopeful the district court will allow us to file the brief and will then let the remaining provisions of SB 23 go into effect. The district court has already permitted three other amicus briefs to be filed in the case, and the abortionists have said they do not oppose our request to file. As to the scope of relief, as we explain:
[P]laintiffs have no legitimate interest in obtaining relief against provisions they have not challenged. The state defendants, for their part, presumably have an interest in minimizing the relief this Court grantsagainst them.
In short, it should be clear to all that the court ought not to strike down parts of a bill that no one has even challenged!
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