The Debate Over The Costs Of Legally Defending Ohio's New Abortion Laws

Mar 18, 2018

Last week, Judge Timothy Black of the U.S. District Court’s Southern District of Ohio granted a preliminary injunction against Ohio’s newest abortion law. It banned abortion at the point in which Down Syndrome could be detected in fetal tests. Within hours of Black's ruling, Attorney General Mike DeWine appealed the decision. Since Gov. John Kasich and the Republican dominated legislature took control almost eight years ago, twenty abortion laws have been passed and many of those have sparked litigation. What has the state spent to defend those new laws in court?

Democratic Representative Nickie Antonio didn't vote for the Down Syndrome Abortion ban that was prevented from going into effect by the recent court decision. She said she wants to help women who receive the diagnosis that their pregnancy will likely result in a child born with Down Syndrome, but says this law is not the way to go about it.

"You know I'm not surprised that now the state is going to enter into litigation. I think it's sad that dollars are now going to be dedicated to defending litigation when we could be taking those dollars and putting them toward everything from pre-K education to any kind of special services, child protection services, services for children. I think there's a lot of things that we could do with the funds that the state of Ohio is now going to defend," Antonio said.

It wasn't like lawmakers didn't know a legal challenge was likely. Legal experts who testified in front of committee warned legislators. Here's Mark Spindelman, a constitutional law professor at Ohio State University's Moritz College of Law testifying to a Senate committee back when the bill was being debated.

"The Supreme Court's abortion rules give pregnant women the right to terminate unwanted pregnancies for whatever reason they choose. The state can, in some ways, seek to influence that decision, but the final decision belongs to the pregnant woman. For the state to take the decision away from her, for the state to make the decision for her, as SB 164 does, is unconstitutional," Spindelman testified.

But lawmakers passed it anyway and Kasich signed it into law. And shortly thereafter, the ACLU of Ohio sued to keep it from going into effect. The organization's Freda Levenson's grounds for suing echoed Spindelman's warning.

"It's unconstitutional because a woman has an un-categorical right to abort pre-viability," Levenson explained.

The ACLU has sued the state four times in recent years over abortion laws. There are no figures to show how much the state has spent defending those laws in court. But at the end of last year, Ohio's Legislative Service Commission did an analysis on what it would have cost for the state to defend another abortion bill that didn't pass. It estimated, based on what has been spent challenging abortion legislation in some other states, that Ohio could spend several thousand dollars to several million dollars. That's a wide range. But the letter gives examples of what other states have spent. Take Indiana for example. The memo uses figures from the Indiana State Auditor, between 2011 and last year, that state paid out $2.8 million to the ACLU for unsuccessful challenges of that state's abortion laws. In Texas, since 2013, that state spent more than $4.5 million. And in Arizona, about $2.2 million has been paid out over the past eight years for unsuccessful court challenges to abortion legislation. Gabe Mann with NARAL Pro-Choice Ohio thinks lawmakers who oppose abortion would be better off to pass legislation to help women prevent unwanted pregnancies in the first place.

"Supporters of women's health care have been asking the state legislature for years for guaranteed access to women for emergency contraception in emergency rooms. We've been pushing for comprehensive sex education programs. There are programs that other states have already piloted to guarantee access to long acting contraception. All of these are proven to work to lower the numbers of abortions yet Kasich is only interested in bans to legal, safe care," Mann said.

Ohio Right to Life has pushed for the abortion bans that have passed so far. Its president Mike Gonidakis says the people who wonder why the state is passing abortion bills that are litigated should question their motives.

"It's just because this is an issue or a law they disagree with. That's a talking point used by that side. When it was the marriage amendment going up in the courts, they were all for it," Gonidakis said.

As for the criticism that the money spent defending these abortion laws could be better spent on reducing unwanted pregnancies, Gonidakis says his group has backed legislation to do that.

"We are all for prevention. We support abstinence education. We never once opposed birth control. A woman could get access to birth control at any Giant Eagle, CVS or Kroger in the state of Ohio. It's over the counter and it's available. There's a lot of birth control that is free like through Planned Parenthood on the campus of Ohio State University. So there's not an access problem in Ohio. There's not an affordability problem in Ohio. It's there and it's available," Gonidakis said.

One of the measures passed recently restricted federal family planning funds from going to Planned Parenthood and any other clinic that provides abortion. Gonidakis notes the attorney general is charged with defending the state's laws and has funds set aside to do that. And he thinks the state will ultimately prevail when it comes to this latest abortion law. Gonidakis says the court battle is part of the overall goal.

"Our goal is to ultimately get to the United States Supreme Court because we believe the timing is right to win."

There are likely to be more abortion bills passed through the Legislature in the next year or so. One which deals with the disposal of fetal remains is almost through the legislative process.