Judge delays law mandating burial of fetal tissue for now

A judge on Monday temporarily blocked enforcement of an Ohio law that would require fetal remains from surgical abortions to be cremated or buried, agreeing that a lack of rules makes complying unworkable for clinics.

Hamilton County Common

Pleas Judge Alison Hatheway’s decision came a day before the law was set to take effect in a case brought by a group of clinics that argued a lack of rules, including whether a death certificate would be required, made complying with the law “impossible.”

In a ruling from the bench, Hatheway also went further — barring the state from enforcing the law’s new penalties against abortion providers until 30 days after rules are set.

“Without the required rules and forms in place, the plaintiffs will be forced to stop providing procedural abortions because of a real threat of sanctions and penalties independent from criminal prosecution,” the judge said. “This substantially interferes with, if not denies, the plaintiffs’ patients’ rights to access abortion under the Ohio Constitution.”

The law would replace an earlier Ohio law requiring aborted fetuses to be disposed of “in a humane manner,” but without defining “humane.” Abortion opponents had argued that the new language assures human dignity, while abortion rights groups called it another effort by the state’s Republican-led Legislature to obstruct a legally available procedure.

The state argued during Monday’s hearing that the new law is not a ban on abortion.

“The only way that it has the effect of a ban on April 6 is under the plaintiffs’ erroneous factual and legal assumption that they will have to preemptively stop all abortions because of a lack of affirmative assurances (against prosecution),” said attorney Andrew McCartney, representing the Ohio Department of Health.