Ohio 24-hour abortion waiting period under legal attack as feared by amendment opponents

The fears of anti-abortion advocates in Ohio are being realized as abortion rights supporters challenge the state's 24-hour waiting period rule as at odds with the abortion rights amendment enshrined into the state constitution last fall.

The fight comes following the passage of a sweeping abortion rights amendment into the state constitution during the November 2023 election that prohibits the state from acting “directly or indirectly [to] burden, penalize or interfere with or discriminate against” a citizen’s reproductive choices, allowing abortion until fetal viability.

The lawsuit against the 24-hour waiting period was launched in March, with new court documents filed Monday presenting the argument that the wait time and the requirement for two in-person appointments prior to an abortion creates an undue burden for patients.

“Ohio’s 24-hour waiting period, forced second clinic visit, and state-mandated informational and biased counseling requirements continue to pose significant barriers for Ohio women and MAP clients seeking necessary reproductive care,” Jeffery Ruppert, a Columbus-area attorney representing the abortion rights group Ohio Women's Alliance, wrote in an amicus brief.

According to the Ohio Capital Journal , the brief includes affidavit testimonies from several women who had delayed access to abortions, as well as volunteers who assist abortion-seekers through the group’s Member Assistance Program.

Several of the abortion patients said they had to travel several hundreds of miles in order to reach one of Ohio’s nine abortion clinics .

“I didn’t understand the purpose of it, what it changed looking back, or how it helped,” West Virginia resident Kristen wrote in her affidavit. “All I know was that with three children already and a full-time job, I didn’t see how getting the medical procedure I needed was possible.”

Ohio Attorney General Dave Yost has said many of the arguments against the 24-hour waiting period as creating an undue burden are not due to the mandate themself, but rather are “attributable to several factors outside of the state’s control.”

Neither Yost’s office nor Ohio Women’s Alliance responded to the Washington Examiner’s request for comment at the time of publication.

The abortion debate in Ohio drew national attention last year following two statewide referenda related to abortion rights.

The first, in August 2023, was a referendum regarding whether to increase the popular vote necessary to pass a constitutional amendment via referendum. It did not pass. The second, in November, was on the amendment itself, which passed with a simple majority vote.

The amendment enshrined into the state constitution the right for every individual to “make and carry out one’s own reproductive decisions," which includes but is not limited to contraception, fertility treatments, miscarriage care, and abortion.

The Buckeye State’s 24-hour waiting period went into effect in 1998, well before the overturning of Roe v. Wade in 2022 that made abortion a legislative rather than judicial matter.

During the ballot initiative campaign, anti-abortion advocates said passing the amendment would eventually nullify several of the state’s regulations on abortion, including the 24-hour waiting period.

Other laws that could face legal challenges include Ohio's parental consent requirements for minors to obtain abortion procedures as well as safety regulations for abortion clinics, such as distance from an emergency medicine facility.

The state's so-called heartbeat law, which would have prohibited abortions after six weeks gestation following the detection of a heartbeat, was struck down by the state Supreme Court in December following the passage of the amendment.

Ohio’s abortion debate has continued to be in the spotlight as Sen. J.D. Vance (R-OH), who opposed the amendment during the 2023 referendum, contends for the vice presidency under former President Donald Trump.

The majority of states, 28 in all, have waiting periods of 24 hours or more prior to receiving an abortion, according to the Guttmacher Institute , the research arm of Planned Parenthood. Of these, 16 states require one in-person visit to the abortion facility prior to receiving the procedure.

Only 13 of the states with 24-hour waiting periods have a near-total abortion ban that prohibits elective abortion at any stage of pregnancy.

Anti-abortion advocates contend that requiring pre-abortion counseling of some kind, with or without a waiting period, is an essential portion of informed consent, a central principle in medical ethics.

A total of 31 states require abortion patients to receive some form of counseling regarding the gestational age of the fetus, while 27 require a description of the entire fetal development cycle.

Exactly half of the states require the patient to be informed of the specific details of the procedure she is to undergo, whereas 24 states require the patient to be informed about all common types of abortion protocols.

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Only 14 states require patients to be told that the fetus can feel pain at 15 weeks, and 5 require the woman to be told that personhood begins at conception.

Ohio specifically only requires that the abortion patient be verbally informed of the details of her chosen procedure and of the gestational age of the fetus. She is to be given written information about fetal development throughout pregnancy.