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(LifeSiteNews) – The Ohio Supreme Court rejected a bid by the state’s Republican Attorney General Dave Yost to resolve aspects of the legal dispute surrounding the state’s heartbeat-based abortion ban that could impact future efforts to defend the preborn even with last month’s passage of a state constitutional amendment rendering the law moot by enshrining a “right” to abortion in Ohio.

The Right to Reproductive Freedom with Protections for Health and Safety Amendment asserts a “right” to make “personal reproductive” decisions, “including but not limited to decisions on contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion,” which the state “shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against.”

In October, Yost’s office released a legal analysis determining that the amendment would go far beyond the Roe v. Wade status quo activists are trying to restore and block prohibitions on partial-birth and dismemberment abortions, allow abortionists to target disabled babies, and end parental consent requirements for abortion as well as minors’ contraception, sterilization, and gender “transition” decisions.

Pro-life forces launched their own campaign to urge Ohioans to reject the amendment, yet it passed at the ballot box by a 56%-44% margin. On December 7, Yost’s office issued a supplemental brief acknowledging that the amendment has “overridden” the “core prohibition of the Heartbeat Act” against “performing an abortion after a fetal heartbeat is detected” while seeking to tie up two procedural loose ends pertaining to the case: “the appealability of a preliminary injunction against enforcement of a State law, and Plaintiffs’ potential third-party standing to raise others’ rights” (i.e., whether abortionists can sue purportedly for the sake of abortion-seeking women even without specific patients who have been harmed by a law as parties to the case).

In particular, the “appealability issue not only can be resolved, but also desperately requires resolution — it goes literally to the foundation of a representative democracy, by providing a single county judge the ability to negate the acts of the peoples’ representatives without any review, for a very long period of time.”

While the brief stipulated that it was not seeking permission to enforce the heartbeat law’s central ban, it also reminded the court that the law also has provisions pertaining to adoption, foster care, and the creation of informed-consent materials that will “need to be carefully sorted out and may require additional fact development,” and that a “full resolution of what statutory provisions conform to, or conflict with, the new Amendment will require careful review and briefing before a trial court.”

On Friday, the state’s highest court dismissed Yost’s appeal with the simple explanation “due to a change in the law.” In light of the development, Cleveland.com reported that “all eyes are now on a state court that could strike down the law altogether, an attorney representing abortion providers said.”

While not surprising given the scope of the amendment, the straightforward dismissal offers a grim preview of how most abortion-related lawsuits can expect to fare under the Buckeye State’s new status quo, indicating the ease the abortion industry will most likely have in blocking future pro-life measures.

After the amendment’s passage, Republicans in Columbus announced they would be pursuing legislation to deny the state judiciary any jurisdiction over the new amendment and to take advantage of its “ambiguous” language to determine “what, if any, modifications to make to existing laws based on public hearings and input from legal experts on both sides.” As a practical matter, only federal law or the U.S. Constitution can trump a state constitution.

In response to the U.S. Supreme Court overturning Roe v. Wade last year and allowing states to directly ban abortion, leftists have pursued a variety of tactics to preserve abortion “access.” Arguably their most successful has been working to attempt to embed “rights” to abortion in state constitutions, which effectively insulates abortion-on-demand from future state legislation and could only be overridden by a federal abortion ban. Since the 2022 midterm elections, such efforts have also succeeded in Vermont, California, and Michigan, and are being attempted in Florida and Maryland

The issue has prompted much conversation among pro-lifers about the need to develop new strategies to protect life at the ballot box.

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