CLEVELAND, Ohio — U.S. Supreme Court’s decision to not take up a case that challenged Alabama’s law banning a common second-trimester abortion method has little immediate bearing on a similar law in Ohio.
However, people involved in the abortion legal fight say it could as Ohio continues to defend its law, and anti-abortion activists try to push a conservative-leaning high court to settle the issue once and for all.
The justices said Friday that it wouldn’t review a lower court’s ruling that allowed abortion providers in Alabama to continue to use the dilation and evacuation method, even though state lawmakers there passed a law banning the method.
Ohio’s Republican-controlled legislature passed a similar law in December that then-Gov. John Kasich signed. Senior U.S. District Judge Michael Barrett in Cincinnati blocked most of the law from going into effect while Planned Parenthood pursues a lawsuit against the state.
Ohio’s law makes it a fourth-degree felony to perform the procedure, commonly known as D&E, and carries a penalty of up to 18 months in prison upon conviction. The law deems the procedure “dismemberment abortion” and says a doctor can only perform it if the doctor first causes “fetal demise” or if the mother’s life is at serious risk.
Even though laws in Alabama and Ohio, as well as in other states, are under challenge in the courts, Friday’s decision by the nation’s high court to not review the Alabama case only affects Alabama. The ruling it reviewed was from the 11th U.S. Circuit Court of Appeals in Atlanta, which covers district courts in Alabama, Georgia and Florida.
Federal judges in Ohio, meanwhile, have their decisions reviewed by the 6th Circuit in Cincinnati. That court has not yet ruled on the constitutionality of any D&E laws, though the state of Kentucky is pursuing an appeal after a federal judge struck down its law.
Since Ohio is covered by a different appeals court and the Supreme Court only declined to hear a case from that court, the ruling only affects that appeals court.
It’s not uncommon for the Supreme Court to wait for multiple courts to weigh in before it decides to take up an issue, especially if courts issued different rulings.
Case Western Reserve University law Professor Jessie Hill said the Supreme Court’s decision not to take on the case might help Planned Parenthood in its challenge of Ohio’s law. Planned Parenthood’s position may have weakened a bit had the court taken the Alabama case, said Hill, who is a lawyer on a lawsuit challenging a more restrictive Ohio law banning abortions whenever a fetal heartbeat is detected.
“If the Court had taken the case, it might be a signal that it’s ready to maybe uphold the law or even overrule Roe,” Hill said in a text, referring to the 1973 ruling Roe v. Wade that legalized abortion nationwide.
Mike Gonidakis, the president of the anti-abortion group Ohio Right to Life, said he thinks the Supreme Court would take up the Ohio case should the 6th Circuit uphold the state’s law. If that happens, there would be a split among appeals court, and the Supreme Court would have to make the final decision for the rest of the country.
If the justices don’t rule on D&E laws, though, they may take on one of a flurry of other laws that anti-abortion conservative lawmakers have passed in Ohio and other states in recent years. Their hope is that the Supreme Court takes a case and overturns one of several rulings that limit restrictions to abortions.
Justice Clarence Thomas, while agreeing with his colleagues on the Supreme Court that it shouldn’t take the Alabama case, signaled Friday in his concurrence that he thinks the court should address the issue of abortion soon.
“This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,” Thomas said.
Reporter Laura Hancock contributed to this story.