Ohio Attorney General, ACLU counter claims that reproductive rights amendment impacts judge’s job

The Ohio Attorney General’s Office and the ACLU of Ohio are countering the claims of a Trumbull County judge who says the Ohio Constitution’s amendment protecting reproductive rights hinders his ability to do his work.

In a filing with the Ohio Supreme Court, the ACLU of Ohio said Trumbull County Family Court Judge David Engler has “no standing” as a matter of law or fact.

Engler is arguing that the reproductive rights amendment of the Ohio Constitution passed by voters in 2023 keeps him from being able to properly judge cases in which a minor makes a legal request to have an abortion without the need for parental permission, a longtime legal method called judicial bypass.

The method requires judges to hold hearings, receive testimony, and assess the “maturity and voluntariness” of a request to bypass parental permission via the courts.

In April, Engler filed a request with the Ohio Supreme Court claiming that the reproductive rights amendment “is being applied to eliminate parental-consent requirements for minors and to render judicial-bypass proceedings unnecessary or unavailable,” according to the court document.

Engler is in his first year as a judge on the county court, but said that in the five years before he took the bench, Trumbull County’s juvenile court saw about two judicial bypass requests per year.

Since he became a judge on the court, Engler said the court has seen none, according to an affidavit submitted to the Ohio Supreme Court.

As a result, the judge claimed his judicial office “has been stripped of a statutory and historically exercised judicial function.”

The law requiring minors to have the consent of a parent before seeking an abortion goes back to 1998, when the law also allowed minors to utilize judicial bypass proceedings. The law was challenged, and eight years later, a federal appeals court upheld the law.

Engler asked the court to order that the amendment be administered and enforced “in a manner that preserves and does not eliminate or interfere with juvenile-court jurisdiction over judicial-bypass proceedings.”

He also asked the court to render the amendment “unenforceable to the extent it is construed or applied to eliminate or interfere” with juvenile courts and judicial bypass cases.

Ohio Attorney General Dave Yost’s office filed a motion on May 11 asking the court to dismiss the request, calling the challenge to the amendment “untimely” because the judge “has not alleged an injury that is fairly traceable” to the state.

“Even if (Engler) correctly asserts the amendment ‘eliminates or interferes with juvenile-court jurisdiction over judicial-bypass proceedings,’ the constitutional provision prevails over any conflicting statute,” wrote Julie Pfeiffer, on behalf of the Ohio Attorney General’s Office, in the motion to dismiss.

In their response, the ACLU of Ohio and the Reproductive Rights Law Initiative at Case Western Reserve University School of Law made a similar argument.

Attorneys wrote that the data presented by Engler does not warrant a change in the constitution, or provide evidence that the amendment should not be enforced.

“(Engler) has alleged only that fewer judicial bypass cases have happened to arise in Trumbull County recently,” wrote Margaret Light-Scotece, staff attorney for the Reproductive Rights Law Initiative.

“That allegation is manifestly insufficient to support an inference that parental consent laws for abortion are no longer being enforced in Ohio.”

The Ohio Supreme Court has not yet indicated whether it will take up the case.