COLUMBUS, Ohio — A recent ruling by a judge in Hamilton County has declared that an Ohio law mandating the cremation or burial of fetal or embryonic remains from surgical abortions is unconstitutional. This law was deemed to violate a reproductive rights amendment approved by Ohio voters in 2023, leading to a permanent block of its enforcement.
Judge Alison Hatheway made this ruling in response to a legal challenge initiated by several clinics alongside the ACLU of Ohio. An earlier version of the lawsuit had highlighted the absence of specific regulations under the law, pointing out that the lack of clarity around requirements such as the need for a death certificate rendered compliance “impossible.”
Initially passed in 2020, the law was created to supersede previous Ohio regulations, which merely stipulated that aborted fetuses be disposed of “in a humane manner” but did not provide a clear definition of what that entails.
While proponents of the law argued that it was designed to uphold human dignity in these sensitive situations, opponents claimed it was yet another attempt by the state’s Republican-controlled legislature to hinder access to legal abortion services.
In her decision, Judge Hatheway emphasized that allowing the law to go into effect would significantly restrict access to abortion, leading to potentially delayed or denied healthcare for women. She remarked that the state’s failure to adequately defend the law indicated it “simply does nothing to serve patient health.” Furthermore, Hatheway dismissed the state’s claims that the law would only impact fetal tissue rather than access to abortion, noting that the law required healthcare providers to inform patients of these new regulations prior to the procedure and demanded the establishment of relationships with crematory facilities and funeral homes that were not already in place.
This ruling brings an end to a lengthy legal dispute that began in 2021, targeting the Ohio Department of Health and others. Legal representatives for the clinics and ACLU argued that the law imposed unreasonable hurdles to women’s legally protected right to an abortion, labeling it as both “frivolous” and “medically unnecessary.”
The context for this ruling shifted significantly in 2022, following the U.S. Supreme Court’s decision to overturn Roe v. Wade, which had previously safeguarded abortion rights. This shift instigated a series of challenges at the state level, including efforts in Ohio to enshrine abortion rights within the state constitution.
With the new ruling in place, remains from surgical abortions will now be treated according to Ohio’s existing regulations for handling infectious waste, allowing them to be disposed of alongside materials from other medical procedures.
Jessie Hill, an attorney with the ACLU, expressed relief over the finality of the ruling, stating that it enables clients to concentrate on delivering vital healthcare. She referred to the decision as a validation of the strength of Ohio’s newly adopted Reproductive Freedom Amendment.
Kellie Copeland, executive director of the group Abortion Forward, also praised the ruling, arguing that the law was not about providing clear choices to those seeking abortions but rather aimed at stigmatizing and shaming patients as well as the healthcare professionals supporting them.
The fetal tissue measure was enacted by Republican Governor Mike DeWine in December 2020. At the time, Michael Gonidakis, president of Ohio Right to Life, which advocated for the legislation, stated it was merely a matter of decency to require the “humane” burial of what he referred to as the “broken bodies of abortion victims.”
This recent decision is one of many instances in Ohio where courts have struck down abortion-related laws in light of the 2023 amendment. In August, Franklin County Judge David C. Young put a temporary stop to laws creating a 24-hour waiting period for abortion procedures. Furthermore, in September, Judge Hatheway also blocked two other laws that limited telemedicine for medication abortions and restricted who could prescribe the abortion pill mifepristone.
In October, Hamilton County Judge Christian Jenkins ruled against Ohio’s most extreme abortion legislation, which banned most abortions upon detection of cardiac activity, often as early as six weeks into pregnancy, before many individuals even realize they are pregnant.
Despite these victories, all three decisions are currently facing legal appeals.
