Hamilton County Common Pleas Judge Alison Hatheway this week issued a preliminary injunction blocking enforcement of Ohio’s fetal-remains statute, Senate Bill 27, ruling that it likely violates the state constitution and endangers timely abortion access.
First enacted in 2020, SB 27 mandates that abortion providers either bury or cremate fetal or embryonic tissue following a procedural abortion. The law also requires informed consent from patients about how their tissue will be handled.
Proponents framed it as a dignified way to handle fetal remains, but opponents assert it imposes undue burdens on abortion care.
Hatheway first issued temporary halts to enforcement in 2021 and in February 2022, stating at that time that clinics were “substantially likely to succeed” in their constitutional challenge and emphasizing that Ohio’s constitution recognizes “freedom of choice in health care” as fundamental.
On Feb. 14, Hatheway rejected key portions of SB 27 as unconstitutional, granting a broader preliminary injunction preventing the law from taking effect.
Her order identifies multiple constitutional concerns:
- Unconstitutional provisions cannot be severed: “If S.B. 27 were allowed to go into effect, it would severely impede access to abortion resulting in delayed or denied health care,” she wrote.
- Lack of evidence on health benefits: The state offered no proof that SB 27 is the “least restrictive means to advance the individual’s health in accordance with widely accepted and evidence based standards of care,” the ruling noted.
- Targeting abortion patients: Hatheway added, “S.B. 27 serves only to target and discriminate against individuals seeking procedural abortions and their health care providers.”
She also observed that Ohio’s constitution was amended in November 2023 to enshrine the legalization of abortion in Ohio, further bolstering the case against SB 27.
“This law clearly violates the Ohio Constitution, as its sole purpose was to impose severe burdens on abortion patients and providers, and to shame patients in seeking care,” ACLU‑Ohio cooperating attorney Jessie Hill told the Ohio Capital Journal.
Planned Parenthood and other abortion providers applauded the decision, asserting the regulation would have imposed practical and ethical hurdles just to perform abortions at all.
On the other side, Ohio Right to Life’s president, Mike Gonidakis, criticized the ruling and called on the state attorney general to appeal.
“We fully expect our pro‑life Attorney General Dave Yost to appeal this inappropriate decision,” Gonidakis previously told the Ohio Capital Journal. “The role of the courts is to interpret the law and not to make law.”
The organization maintains that SB 27 was intended to protect women and unborn children through “common sense safeguards.” Their press release questioned why similar fetal-remains from miscarriages or IVF aren’t covered by the statute, accusing the injunction of being politically motivated.
The injunction is preliminary, meaning it halts enforcement while the case proceeds. The state may appeal to higher courts, including the Ohio Supreme Court, especially since legalized abortions are now established in the state constitution.
Hatheway’s ruling marks another judicial rebuke to Ohio abortion restrictions. In recent years, she also blocked limits on medication abortion via telemedicine, finding similar constitutional conflicts.
Supporters of legalized abortion see the decision as a victory affirming Ohioans’ constitutional autonomy. For abortion clinics, the ruling provides clarity that they won’t be forced into burial or cremation practices that abortion clinics say are unnecessary and burdensome.
Opponents, however, view the ruling as judicial overreach, ignoring the state’s interest in humane fetal‑remains disposal. The stage is now set for an appellate clash that could determine whether Ohio’s new constitutional protections for abortions override longstanding abortion-related statutes.
