Ohio abortion regulations appeal: Attorneys for the state and women’s health clinics make arguments

By: Susan Tebben, originally published September 18, 2025, Ohio Capital Journal

The appeal debates other provisions contained in the 2019 law that established Ohio’s six-week abortion ban

Attorneys representing the state of Ohio and women’s health clinics made oral arguments Tuesday over whether other provisions in the state’s 2019 six-week abortion ban law can be maintained, even though the ban itself has been struck down.

During oral arguments in front of three judges from the First District Court of Appeals, both the state and attorneys for the reproductive health clinics made it clear that the six-week abortion ban itself was not up for debate, and was settled when a trial court  struck down the ban in October of last year.

The trial court’s decision came after 57% of Ohio voters approved a reproductive rights amendment to the Ohio Constitution in 2023.

The 2019 law had been blocked by courts from the time it was signed by Gov. Mike DeWine until the U.S. Supreme Court struck down nationwide abortion rights in 2022. When the June Dobbs decision overturning Roe v. Wade came down, Ohio Attorney General Dave Yost moved quickly to implement the state’s six-week ban, which included no exceptions for rape or incest.

The ban was in place for several months before being held up by an Ohio court injunction. As that court case was proceeding, voters passed the new amendment, after which the trial court concluded the law had been rendered unconstitutional.

While the state is not fighting the rejection of the six-week ban, the reason the state Attorney General’s office appealed the case was to fight for the other provisions in Senate Bill 23, the state law under which the six-week abortion ban was enacted.

Yost’s team argues provisions such as record-keeping for abortions could stand on their own.

The state has consistently argued that the other provisions can stand under a “severability” clause of the law, which is a legal way of allowing certain parts of laws to stay in place even if another part of the law has been removed or successfully challenged in court.

“There’s basically two issues (in the appeal),” Deputy Solicitor General Stephen Carney told the district court on Tuesday. “What did the legislature intend and, separately, are (the provisions) capable to function by themselves.”

Carney argued the language of the state law clearly states if anything in the law is declared invalid, “it shall not affect any other sections.”

The specific language states that the law’s provisions are “severable.”

“In particular, it is the intent of the General Assembly that any invalidity or potential invalidity of a provision of (the law) is not to impair the immediate and continuing enforceability of the remaining provisions,” according to the Ohio Revised Code.

The state also pointed to previous record-keeping regarding abortion that existed in state law before the Dobbs decision and the six-week abortion ban.

Attorney Cassie Mitchell, of the law firm WilmerHale, represented Preterm-Cleveland, Planned Parenthoods in Southwest and Greater Ohio, Women’s Med Group Professional Corporation, and Northeast Ohio Women’s Center, along with an individual physician in the case, in partnership with the ACLU of Ohio.

Mitchell argued that provisions that were included in Senate Bill 23 along with the six-week ban should also fall because they are directly connected to enforcement of the ban itself.

Laying out the provisions at dispute in the case, Mitchell said four “just clarify the scope of the ban,” including definitions of the law, the fact that the ban didn’t apply to ectopic pregnancies, and that a pregnant individual wouldn’t be held liable, among other provisions.

“Those don’t just stand on their own; they have no meaning without the rest of the ban in place,” Mitchell told the court.

Another four provisions specify punishments for violating the six-week ban, including felony charges and license revocation for medical professionals.

“S.B. 23 created a new punishment for failing to check for cardiac activity that was the same, very severe punishment for actually performing an abortion after the detection of cardiac activity,” Mitchell said. “It was clearly intended to prevent any runarounds of the six-week ban … and it didn’t exist prior to S.B. 23.”

For the state, Carney said a ruling by the appeals court saying the entire law is struck down not only would be “doing something radical that no one has ever done before,” but would also have consequences in other cases on completely different topics.

“You’re threatening how courts review environmental laws or anything else, and then we’re going to feel obliged to appeal that because we’re here because of the effect on all state laws,” Carney said.

The deputy solicitor general went on to say the rejection of the six-week abortion ban section of the law “did not create a super abortion exception” that applies to all provisions of all Ohio laws.

“All we’re asking is that you follow the rule of law, the normal rules of the road that every plaintiff has to meet, versus creating this radical roadmap for everyone to strike down a lot of state laws,” Carney said.

On behalf of women’s clinics, Mitchell said the court could allow closure in the case by giving its ruling as the final say, rather than sending the case back to the previous court to re-litigate a case that has already been down that road.

“This court can resolve this now, it can give plaintiffs and their patients the certainty they need as to what the requirements of Ohio law are, and we can just all move on,” Mitchell said.

Susan Tebben is a reporter at Ohio Capital Journal and an award-winning journalist with a decade of experience covering Ohio news.

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