A federal judge issued a temporary restraining order late Thursday that partially blocked an Ohio law banning an abortion method called dilation and evacuation — the most common method of second-trimester abortions.
Senior U.S. District Judge Michael Barrett in Cincinnati listed several portions of the law, which then-Gov. John Kasich signed in December, that he barred from being enforced. He did not fully block the implementation of the law, which is set to go into effect Friday.
The 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. It says the procedure can only be done if the doctor first causes “fetal demise” or if the mother’s life is at serious risk.
The judge put the restraining order in effect for 14 days.
(You can read the ruling here or at the bottom of this story.)
Barrett’s ruling stems from a lawsuit Planned Parenthood filed in February. The organization — which has abortion clinics in Bedford Heights, Columbus and Cincinnati — noted that D&E is the safest and most common method of abortion after about 15 weeks of pregnancy. During the procedure, the woman’s cervix is dilated and the fetus and other tissue are removed with surgical instruments and suction.
Planned Parenthood said the law was unconstitutional because it imposes an undue burden on women seeking abortions after 15 weeks.
Lawyers for the state said government interests justify the new law because “Ohio seeks to promote respect for life, protect the medical community, and eliminate the possibility for pain for the unborn child,” according to Thursday’s order. The head of Ohio Right to Life, an anti-abortion advocacy group, called the D&E procedure “barbaric.”
Barrett, appointed by President George W. Bush, did not rule Thursday on whether the law is constitutional. Instead, he said he wants to hear more evidence from both sides before he rules on constitutionality and whether to impose a preliminary injunction.
The judge wrote, though, that other courts have reviewed laws similar to the one Ohio passed and found them to be unconstitutional. However, the state has questioned whether those other courts used the correct legal standard, according to Barrett.
The judge’s order follows a hearing he held Monday, and does not completely block the state’s ability to enforce the new law. Specifically, his order blocks the state from enforcing the law against doctors who perform the procedure for a woman who is less than 18 weeks pregnant.
After that, prosecutors can enforce the law, though with a few exceptions:
- A doctor may not be prosecuted if they accidentally remove a part of the fetus while trying to comply with the requirement to bring about fetal death.
- Prosecutors also may not charge a doctor if they perform the procedure after an attempt to terminate the fetus fails.
- A doctor may perform the procedure without first terminating the fetus if they determine that terminating the fetus is not a viable option or is “medically impossible for the patient.”
Neither Planned Parenthood nor Attorney General Dave Yost’s office immediately released statements regarding Thursday’s decision.
Barrett’s decision comes in the wave of recent activity both in the courts and in the Republican-controlled legislature regarding Ohio’s abortion laws.
The 6th U.S. Circuit Court of Appeals ruled last week that a measure lawmakers passed in 2016 to keep Planned Parenthood from receiving public money to pay for non-abortion-related health care programs was constitutional.