On Wednesday, Ohio common pleas court judge Christian Jenkins ruled that the Health Care Freedom Amendment adopted by Ohio voters in 2011 had the wholly unforeseen and undebated effect of creating a state constitutional right to abortion and that the Ohio heartbeat law violates that right.
As the state of Ohio explained in its brief, the HCFA, in guaranteeing a right to purchase health care, barred Ohio from adopting a single-payer system in which citizens would be prohibited from buying health care themselves. But Jenkins wildly misreads the HCFA’s statement that Ohio shall not “prohibit the purchase or sale of health care” as guaranteeing a right to a particular health care procedure from any provider willing to offer the procedure.
Under Jenkins’s misreading, Ohio’s bans on physician-assisted suicide, electroshock therapy for minors, and female genital mutilation for minors would all be invalid. Ohio also couldn’t forbid physicians from prescribing steroids to enhance an athlete’s performance or medical marijuana (as it did until 2016). Nor could it bar the unlicensed practice of medicine, as those who aren’t doctors would have a right to sell a particular health-care service to anyone who wanted to purchase it from them.
Judge Jenkins is also wrong to assert that abortion “clearly constitutes health care within the ordinary meaning of the term.” The longstanding distinction between therapeutic abortions and elective abortions is consistent with the judgment that an elective abortion is not health care. (The fact that states that allow elective abortions typically require that they be done by physicians does not suggest otherwise; it instead reflects the medical risks involved in invading the uterus and killing the baby.)
Jenkins’s reading of the HCFA would mean that there is a state constitutional right to abortion throughout all nine months of pregnancy. But in a weird pivot (perhaps designed to avoid this result), Jenkins collapses his reading of the HCFA into a more general “fundamental right to abortion” that is subject to “strict scrutiny analysis” and holds that the heartbeat bill “is not narrowly tailored to serve a compelling state interest.”
In addition to enjoining defendant state officers from enforcing the heartbeat law for 14 days, Jenkins also purports to bar them “from later taking any enforcement action premised on a violation of [the heartbeat law] that occurred while [the injunction] is in effect.” How it is that Jenkins thinks that he has the authority to immunize unlawful conduct from later prosecution is a mystery. As Jenkins notes, Ohio law ordinarily imposes a bond requirement on the beneficiary of an injunction. That bond requirement ensures that the enjoined party will be compensated for any monetary loss it incurs from conduct that turns out to be unlawful. It thus shows that the beneficiary’s conduct while the injunction is in place is not rendered lawful by the injunction.