CINCINNATI, Ohio — A district judge nominated to the bench by then-President George W. Bush has ruled that the State of Ohio must allow abortionists to make “case-by-case” determinations during the coronavirus pandemic, as some abortions can be considered “essential” — namely, if a delay would put the abortion past the legal limit (21 weeks and six days) or if there are maternal medical risks and health conditions that would warrant the abortion sooner than later.
“If a healthcare provider determines, on a case-by-case basis, that the surgical procedure is medically indicated and cannot be delayed, based on the timing of pre-viability or other medical conditions, said procedure is deemed legally essential to preserve a woman’s right to constitutionally protected access to abortions,” Judge Michael Barrett ruled on Thursday in issuing a preliminary injunction against the State.
“The State and County Defendants … are preliminarily enjoined from applying and enforcing the director’s March 17, 2020 order against Plaintiffs’ physicians in such a way as to prohibit those physicians from making case-by-case determinations that a surgical abortion is essential when the procedure is necessary because of the timing visà-vis pre-viability; to protect the patient’s health or life; and due to medical reasons (which implicate undue risk to the current or future health of the patient and the gestational age of the fetus, as determined by the physician, as it relates to the increased risk of the procedure as the pregnancy progresses).”
Several abortion organizations, including Preterm-Cleveland, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Capital Care Network of Toledo, and Northeast Ohio Women’s Center, had filed suit after Attorney General Dave Yost sent a letter to two abortion facilities, ordering them to cease and desist.
As previously reported, Amy Acton, the director of the Ohio Department of Health, issued a directive last month stating that “all non-essential or elective surgeries and procedures that utilize [personal protective equipment] should not be conducted.” She outlined that “non-essential surgery” is that which can be postponed without a threat to the patient’s life or without permanent damage to their organs or extremities.
Yost said that his office received complaints from the public that two abortion providers were still open for business despite the order.
“You and your facility are ordered to immediately stop performing non-essential and elective surgical abortions,” he wrote, according to The Columbus Dispatch. “Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient.”
“If you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with [Acton’s] order, the Department of Health will take all appropriate measures,” he warned.
Planned Parenthood of Greater Ohio and Planned Parenthood Southwest Ohio Region argued that they were in compliance with Acton’s order and that they had interpreted it to read that they could “still continue providing essential procedures, including surgical abortion.”
The abortion entities explained that they responded to Yost by outlining that they had revised their policies to “determine on a case-by-case basis whether a surgical abortion or procedure constitutes an essential surgery or procedure that may continue to be provided under the terms of the order.”
Two Department of Health inspectors soon visited the locations to investigate compliance, and the abortion advocacy groups filed suit to challenge the order’s application, stating that “abortion care is essential because it cannot be delayed without risking the health and safety of the patient.”
“Forcing patients to forgo abortion care and remain pregnant against their will inflicts serious physical, emotional, and psychological consequences that alone constitute irreparable harm,” the legal challenge read in part.
“Likewise, a delay in obtaining abortion care causes irreparable harm by ‘result[ing] in the progression of a pregnancy to a stage at which an abortion would be less safe, and eventually illegal.'”
Read the lawsuit in full here.
On March 30, Judge Barrett granted Planned Parenthood and the others a temporary restraining order, agreeing that the abortion groups should review each woman’s case to determine whether or not the abortion can be delayed or if the timing of the procedure (abortions are illegal in Ohio past 21 weeks and six days, the point of “viability”) or maternal medical risks make the sought-after abortion “essential.”
The State appealed, but the Sixth Circuit Court of Appeals upheld Barrett’s ruling, issuing the same criteria.
On Thursday, Barrett granted a preliminary injunction, again in the abortion entities’ favor. Among his numerous reasons, he said that the Stay-At-Home order could remain in effect for some time, and that an aspiration abortion (first trimester) is safer than a dilation and evacuation (D&E) dismemberment abortion (second trimester).
“A delay in surgical abortion could cause a substantial risk of serious harm or serious harm to a patient’s health because delaying surgical abortion increases risks associated with abortion,” Barrett wrote. “With respect to the D&E method, the method used if a provider delays an abortion until the legal limit, ‘the risk of injuring the cervix or uterus is greater than with a first-trimester aspiration abortion’ because the D&E method requires the use of instruments.”
“If all, or nearly all, surgical abortions are delayed until the viability limit, Plaintiffs’ facilities could be overwhelmed, and they will be unable to accommodate all of their patients for the required two-day D&E procedures,” Barrett said. “If Plaintiffs are unable to accommodate all patients required to undergo a two-day D&E procedure, patients will be unable to obtain an abortion entirely [or will have to travel out of the state].”
He stated that women are more likely to have health complications further along in their pregnancies as well.
But it is up to each individual abortionist to determine whether or not an abortion can be delayed or if it is “essential” for the act to be committed sooner than later.
“Plaintiffs’ physicians — like all physicians — must use their medical training, medical experience, patients’ individual physical and mental considerations, relationships with their patients, and guidance from professional organizations to make individualized,
case-by-case determinations regarding whether an abortion procedure is essential,” Barrett further concluded, siding with the abortion providers.
“Therefore, in response to the remaining issue of who gets to make the determination of what amount of harm to a patient’s health justifies proceeding with a surgical abortion earlier than the legal limit, the Court concludes that the patient’s physician does. This holding is consistent with the ODH’s COVID-19 checklist’s instruction that ‘[d]ecisions remain the responsibility of providers and local healthcare delivery systems.'”
He said that anything less would place a “burden” and “obstacle” on mothers’ “rights” to an abortion.
“[T]he court finds that Plaintiffs have established that enforcement of the director’s order will likely result in an unconstitutional deprivation of their patients’ Fourteenth Amendment rights because enforcement will have the effect of placing a substantial obstacle in the path of patients seeking pre-viability abortions, thus creating an undue burden on abortion access,” Barrett ruled.
“The Court also finds that Plaintiffs have established that this undue burden is likely to effect ‘a plain, palpable invasion of rights secured by the fundamental law.'”
As previously reported, the late preacher Lee Roy Shelton wrote in “The Crimes of Our Times”, “Life is cheap today to the average individual, but not to God. … God is concerned about that baby in the mother’s womb; He gave it. It came into being, I know, by normal process of a male’s and female’s being joined together as one, but it was God who gave the life in conception, and God alone has the right to say when it should be taken away.”
“God’s Word says in Psalm 127:35, ‘Lo, children are an heritage of the Lord, and the fruit of the womb is His reward. As arrows are in the hand of a mighty man, so are children of the youth. Happy is the man that hath his quiver full of them.’ Children are a heritage of the Lord; God alone gives little children; therefore, woe be unto that woman or man who destroys them, whether in the womb or out of the womb,” Shelton said.
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