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Ohio judge again blocks law requiring cremation or burial of fetal remains

The order marks the second time in the past year the judge has halted implementation.

An Ohio judge this week blocked enforcement of a state law that would require the cremation or burial of fetal remains from surgical abortions, marking the second time in the past year the judge has halted its implementation.

Hamilton County Judge Alison Hatheway said in an order dated Monday that the law is on hold until she issues a final judgment in the case. Before the order, abortion providers were expected to comply with the law by Feb. 8.

Hatheway first blocked implementation of Senate Bill 27 in April, just days before it was scheduled to go into effect. Republican Gov. Mike DeWine signed the legislation into law in December 2020.

“SB27 would severely impede access to abortion, and its enforcement would irreparably harm Plaintiffs and their patients,” Hatheway wrote in her most recent order.

The law would require abortion providers to inform women about their right to decide whether the remains should be cremated or buried. Providers who fail to comply would be subject to a first-degree misdemeanor penalty.

Hatheway said the law would violate the rights of the plaintiffs — Planned Parenthood, the American Civil Liberties Union and Ohio abortion providers — on the grounds of due process and equal protection. She added that the plaintiffs are “substantially likely to succeed” in her final decision.

The state Health Department declined to comment on the legislation, saying it does not discuss pending litigation. DeWine's office did not immediately respond to a request for comment.

Representatives of the plaintiffs said in a joint statement Wednesday that compliance “with this law would have a devastating impact on the ability of Ohioans to access time-sensitive health care, and intentionally denies them autonomy over their own lives, especially harming people with low-incomes, our Black, Latino and Indigenous communities, and people in rural communities."

“While we are grateful for today’s decision, safe, accessible abortion care is still in jeopardy across the state and the nation,” they added.

In recent years, several states have passed similar laws, most of which have been struck down by the courts. An Indiana fetal burial law, however, was upheld by the Supreme Court in 2019.

Advocates for reproductive rights have faced significant obstacles as numerous states and municipalities across the country take more aggressive approaches to restricting access to abortions. The Supreme Court is expected to rule this year on a Mississippi law that directly challenges Roe v. Wade.