Mississippi AG Fitch leads coalition in filing amicus brief regarding Ohio’s Heartbeat Act

Fitch and 17 other Attorneys General urge the Ohio Supreme Court to reject the abortion provider plaintiffs’ challenge.

On Monday, Mississippi Attorney General Lynn Fitch led a coalition of 18 states in filing an amicus brief in Preterm Cleveland v Ohio in the Supreme Court of Ohio, urging the court to reject the challenge to Ohio’s Heartbeat Act.

According to the brief, Ohio enacted the Heartbeat Act in 2019 which requires any “person who intends to perform or induce an abortion” to “determine whether there is a detect-able fetal heartbeat.” It also prohibits “knowingly and purposefully perform[ing] or induc[ing] an abortion on a pregnant woman” after detecting a fetal heartbeat.”

However, those provisions do not apply when an abortion provider determines in good faith that compliance would pose a “serious risk of the substantial and irreversible impairment of a major bodily function.”

In 2022, several abortion providers filed a lawsuit claiming that the Act violates the Ohio Constitution.

The trial court preliminarily enjoined much of the Act and ruled that the plaintiffs possess third-party standing to challenge the Act. It held that the Ohio Constitution protects a fundamental right to abortion, that the Act infringes that right, and that the Act also violates the Ohio Constitution’s guarantee of equal protection. The state of Ohio appealed; however, the First District dismissed the appeal for lack of jurisdiction.

“It ruled that the preliminary injunction was not an order that could be immediately appealed,” the brief pointed out. “The State then appealed to this Court, which accepted the case to review questions on appealability and third-party standing.”

Attorney General Fitch stated that in Dobbs, the Mississippi case that overturned Roe v. Wade last summer, the U.S. Supreme Court returned important policy making to the people and their elected officials.

“The Court set aside decades of special rules that had been created to circumvent longstanding principles of neutrality in order to validate Roe v Wade at any cost, rules that had done great damage to the Court and to the law,” Fitch continued. “We urge the Ohio Supreme Court to not make those same mistakes and instead follow the lead of the Dobbs Court to give effect to the will of the people of Ohio.”

In the amicus brief, the Attorneys General encourage the Court to hold that abortion providers lack third-party standing to challenge laws regulating or restricting abortions.

“There is no good reason for this Court to engraft onto Ohio law the problems that long plagued federal law and federal courts in abortion cases. This Court should recognize as much by holding that abortion providers lack standing to challenge the Heartbeat Act based on a non-party’s claimed right to abortion,” the brief states. “The Court should hold that the abortion-provider plaintiffs lack third-party standing to challenge the Heartbeat Act.”

In addition to the Mississippi Attorney General, Attorneys General from Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Texas, Utah, and West Virginia joined the brief.