An Ohio appellate court last week struck down nearly all of a state law requiring the burial or cremation of fetal remains after an abortion, ruling that the 2023 reproductive rights amendment to Ohio's constitution shields abortion providers from the regulation.
The First District Court of Appeals, sitting as a three-judge panel in Columbus, upheld most of a lower court's injunction against Senate Bill 27 and left only two minor provisions standing. The law, passed in 2020, required clinics to cremate and inter fetal tissue or remains at their own cost and created criminal liability for facilities that failed to comply.
It never took effect. Abortion providers challenged it almost immediately, and a Hamilton County Court of Common Pleas judge blocked the law before it could be enforced. Now, six years after passage, the appellate court has finished the job.
The core of the ruling rests on a breathtaking reading of the Reproductive Freedom Amendment that Ohio voters approved by 57% in 2023. That amendment barred the state from creating any measure that would "burden, penalize, or discriminate against" those wanting an abortion or helping others receive one, as 10tv reports.
The state argued that S.B. 27 regulated conduct occurring after an abortion, not the abortion itself, and therefore fell outside the amendment's reach. The court rejected that distinction outright:
"The plain language of the amendment applies to government action that affects all phases of reproductive decision-making, including discrimination that might occur after a procedure."
In other words, the amendment doesn't just protect the act of abortion. It protects everything adjacent to it, before, during, and after. A law telling clinics what to do with remains once a procedure is complete now qualifies as interference with "reproductive decision-making."
The court went further, declaring that the amendment "significantly constrains the state's ability to regulate in the field of abortion." The only regulatory path left open, according to the ruling, requires the state to demonstrate that any abortion-related statute is "the least restrictive means to advance the individual's health in accordance with widely accepted and evidence-based standards of care."
A burial requirement for fetal remains is not clear that bar, the court concluded.
Of the entire law, the court allowed exactly two provisions to remain:
The state gets to update a definition and collect paperwork. Everything with actual regulatory teeth is gone.
The court acknowledged, almost in passing, that the amendment was not a blank check. The judges noted that the amendment's own language permits bans on abortion up to fetal viability, with viability determined by an individual's physician. They wrote that the amendment was approved "with the specific understanding that the state had some leeway to regulate and even ban abortion going forward."
"These two exceptions carve out significant space for the state to operate."
And then the court proceeded to collapse that space to nearly nothing, at least as it applies to S.B. 27. The judges wrote that the amendment's purpose was to "protect reproductive decisions and activities from state interference absent a real health and safety concern." They did not find that a burial requirement constituted a real health and safety concern. They simply declared it a burden.
This is the pattern that should concern every conservative watching how ballot-initiative constitutional amendments get interpreted after the votes are counted. The amendment's text mentions state leeway. The court's application eliminates it. Fifty-seven percent of voters approved language that they were told preserved some state authority to regulate. The judiciary is now explaining to them what they really meant.
As the court itself put it:
"Ohio voters said what they meant."
Apparently, what they meant is whatever the court decides they meant.
Ohio Right to Life Executive Director Carrie Snyder framed the ruling as predictable judicial activism:
"It's unfortunate, but not a surprise, that the First District Court of Appeals sided with the abortion industry to stop Ohio's fetal remains law from taking effect."
Snyder argued that the Reproductive Freedom Amendment "is being used far beyond what any voter would imagine." That claim is difficult to dismiss. The amendment was sold to voters as a measure protecting the right to abortion. It is now being deployed to prevent the state from requiring dignified handling of human remains.
The ACLU of Ohio called the decision "yet another historic application" of the amendment. Jessie Hill, a cooperating attorney for the ACLU, celebrated the result:
"While this law has not been in effect for years, today's ruling will allow our clients to focus on providing essential health care without further interference from the state."
Note the framing. A law requiring cremation and burial of fetal remains is "interference." The remains themselves merit no mention. The human dimension of what those remains represent does not factor into the ACLU's celebration, and it barely factors into the court's analysis.
This is not merely an Ohio story. It is a preview of how reproductive rights amendments function once embedded in state constitutions. Activists draft broad language. Voters approve it, often understanding it as a simple protection of abortion access. Courts then interpret that language as an expanding shield that covers not just the procedure but every regulation that touches any phase of the process.
S.B. 27 did not restrict access to abortion. It did not limit who could obtain one or when. It addressed what happens to the remains afterward. It included exceptions for medical emergencies. It required clinicians to notify patients of their right to choose the method of disposal. None of that mattered.
The law also created criminal liability for noncompliant facilities, which the court treated as a burden on reproductive decisions. From a conservative standpoint, that framing inverts the entire purpose of regulatory enforcement. Every health and safety law creates liability for noncompliance. That is how laws work. Exempting abortion providers from that basic structure does not protect a constitutional right. It creates a privileged class of medical facility that operates beyond ordinary accountability.
Pro-life advocates warned during the 2023 amendment campaign that the language was a Trojan horse, broad enough to dismantle virtually any abortion-related regulation under the banner of preventing "burdens." This ruling validates that warning.
The amendment said the state could regulate. The court said it cannot. Somewhere in between, Ohio's elected legislature passed a law that a majority of voters' representatives supported, and it now sits in a legal grave of its own.
No burial required.
