Battle for Ohio

Photo of Case Western Reserve University School of Law Professor Jessie Hill in the school's law library
Photo by Angelo Merendino

Jessie Hill, leading litigator of the state's reproductive rights movement, meets the biggest legal fight of her life

By Mark Oprea

The U.S. Supreme Court’s June 24 ruling that abortion is not a constitutional right prompted celebration from some—and outrage among others.

Jessie Hill, the Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law, is one of the latter. Besides her role as a law professor, Hill leaned into her litigation expertise the evening Roe v. Wade fell. Merely minutes after the decision came down, Ohio Attorney General Dave Yost asked Southern District Judge Michael Barrett to remove the injunction on 2019’s “heartbeat” bill—which limits abortions to when fetal cardiac activity is detected, typically at about six weeks of pregnancy. Barrett lifted the injunction that evening at 6 p.m., and the bill was codified into Ohio law.

That’s when Hill’s phone started ringing.

“It was absolute chaos,” said Hill. “I had to give our clients the bad news and help them figure out how to comply with the law. At the same time, I was getting nonstop press calls, as well as thoughtful, supportive texts from friends and colleagues.”

While the ban didn’t come as a surprise, the swiftness of it taking effect did. “We were expecting him to file that motion, but we were not expecting the judge to give us only two hours to respond to it,” Hill recalled. “We thought we would have a bit more time to prepare, and for our clients to prepare.”

“All these women had abortions scheduled,” Freda Levenson, legal director at the American Civil Liberties Union of Ohio, said. “Perfectly legal abortions that they were relying on and planning. And they suddenly were told, ‘You can’t have your abortion.’”

Five days later, on June 29, Hill, Levenson and Becca Kendis (LAW ’19, SAS ’19), a reproductive rights fellow at the law school since 2020, filed in the Ohio Supreme Court a lawsuit they’d been working on since last November. They were joined by others—a team of attorneys from the national headquarters of the ACLU and Planned Parenthood, as well as the law firm Wilmer Hale—in their filing. In their 44-page complaint, the Hill-led coalition requested that the Ohio Supreme Court recognize that, as Hill said in an interview, “the Ohio Constitution protects the right to abortion, even though the U.S. Constitution does not.”

In September—and then, again, on Oct. 7—a judge agreed. Judge Christian Jenkins of Hamilton County issued a preliminary injunction, blocking the “heartbeat” abortion ban indefinitely.

For Hill, the ruling to restore abortion access in Ohio brought relief. “It’s particularly important for women in the southern part of the state,” she said, “given that West Virginia and Kentucky have both banned abortion.”

The state, however is expected to appeal. “We are almost certain that the law will ultimately end up in the Ohio Supreme Court, so this case won’t be over any time soon,” said Hill. “But we aren’t going anywhere and will keep fighting as long as it takes.”

In the post-Roe era, about 14 states are mired in a political and legal battles on abortion. This is a culmination of 43 years of litigation for many. For Hill, who has counseled or cocounseled on nine major Ohio reproductive rights cases in the past 11 years, today’s legal context represents her greatest challenge—and opportunity—to make a difference in the fight for reproductive freedom.

“Oh, she’s in the fight of her life,” Levenson said, regarding the group’s lawsuit, PretermCleveland v. David Yost.

In 2019, Hill served as counsel in Planned Parenthood v. Hodges, arguing that clinics couldn’t lose medical licenses due to “arbitrary transfer rules,” or patient transfer agreements with local hospitals. In 2017’s Preterm-Cleveland v. Himes, she argued before Ohio’s Sixth Circuit court of appeals against a ban on Down syndrome abortions.

After President Donald Trump took office in 2017, Hill and her colleagues knew Trump’s long-promised appointment of conservative U.S. Supreme Court justices could put abortion access in jeopardy. In September 2020, a year after Hill battled Yost’s support of the “heartbeat” bill, liberal Justice Ruth Bader Ginsburg died; two months later, conservative Justice Amy Coney Barrett replaced her.

That fall, Kendis said, Hill’s team “immediately started researching legal theories under the Ohio Constitution.”

For a year and a half, Hill became entrenched in Ohio law, in between symposium talks, phone-call counseling, coursework and penning academic papers such as “The Geography of Abortion Rights.” By the time June 20, 2022 arrived, Hill felt herself armed to argue against Ohio’s six-week abortion ban with an array of supporting evidence: the risk of death during childbirth is about “13 times higher” than with abortion, and people have “threatened to commit suicide” when “denied care,” according to data in the writ of mandamus. (One woman, according to the report, said she would “drink bleach” if forced to remain pregnant.)

“This lawsuit,” Hill said, “has been a very long time in the making.”

Decades before Hill adopted the lead litigator role for Ohio’s pro-choice advocates, she was a student at the all-girls St. Ursula Academy preparatory school in Cincinnati, where she grew up.

This was the 1980s and, for Hill, the world of legal matters was somewhat distant. Her family was politically quiet, and her neighborhood mostly conservative. Upon graduating from high school, Hill fulfilled her goal of attending an out-of-state university and was beginning her “rebellious streak.” Twelve years of Catholic schooling, Hill recalled with a grin, contributed to her 180-degree view on reproductive rights.

“I kind of feel like Jesus would have been pro-choice,” Hill said. “I can’t see how the empathetic answer to anyone’s suffering is to force them to have a child.”

As an undergraduate at Brown University, Hill was intrigued by the social justice tendencies of French feminist writing and opted to study comparative literature. She pursued similar post-graduate work at Yale University until dropping out in 1996— having been “too removed from the real world”—and earned her Juris Doctorate at Harvard University in 1999. Hill passed the bar in both New York and Massachusetts, and litigated trial-level cases with constitutional insight for the ACLU’s Reproductive Freedom Project in New York. Soon after, she relocated to Cleveland and passed the Ohio bar in 2002. The following year, she began working as an associate for Berkman, Gordon, Murray & DeVan, then started teaching at Case Western Reserve University two years later.

Jessica Berg (GRS ’09, public health), co-dean of the School of Law, has observed Hill’s dedication to teaching, research and litigation since Hill became an assistant professor in 2004. “We knew she was a very talented attorney, extremely smart and really had a good sense of scholarship,” Berg said. “And she had even said at the time she was not going to stop the practice side of things. And, well, she didn’t.”

As the Ohio abortion debate intensified, Hill’s writing became more philosophically complex, as did her courses. Hill highlighted the religious underpinnings in abortion law in her coursework, while writing law review articles linking Christian morality to First Amendment issues, such as 2013’s “(Dis)Owning Religious Speech” and 2020’s “Reconsidering the Takeover of Religious Organizations.”

There is a theme linking reproductive choice, religious liberty and free speech, Hill noted in a 2019 article. “That unifying thread,” she wrote, “is the concept of deliberative privacy.”

The goal of the astute litigator, Hill said, is to first know the defendant’s argument just as well as your own.

It’s a well-known tactic embraced by many attorneys, but Hill has perfected this strategy. “You don’t want to present a caricature of the other side,” Hill said. “Because if you go into court with some caricatured idea of what your opponent’s argument is, then you can’t respond to it effectively.”

In 2016, right after earning a Distinguished Research Award from CWRU, Hill started the school’s Reproductive Rights Lab— where students produce memos and briefs for, as she explained, “actual, real-life repro cases.” She wanted to bring her students closer to casework. Whether examining legal theories to challenge Ohio House Bill 598—the 2021 “trigger bill” that would prohibit abortion from the moment of conception if signed—or arguing for the constitutionality of keeping a six-week ban legal, Hill’s lab is intended to be a deep dive into cases playing out in state and federal courthouses.

For Kairra Brazley, a third-year law student, the lab was a precursor to her summer work at Friedman & Nemecek, a Cleveland law firm. Though Brazley defines herself as leaning prochoice, she sees the Reproductive Rights Lab as a preparatory extension away from stiff legal theory. “She would introduce us to stuff not in the book,” Brazley recalled.

Alex Brown (LAW ’16), now an associate attorney at Meyer Darragh Buckler Bebenek & Eck in Pittsburgh, remembers Hill’s constitutional law class—one of his favorites—as “accessible to anyone, regardless of their views.”

Even when those views are the “polar opposite” of Hill’s, as was often Brown’s situation. “I never felt that I was treated differently because I had a different philosophical background. We could freely exchange ideas and have a dialogue without feeling like we were going to be judged for that,” Brown said. “I think that is a really important lesson for society today, across the board.”

And when tensions occasionally rose as students’ personal perspectives seeped into classroom discussion, Hill consistently managed to calm them. “Professor Hill kept the peace,” Brazley said.

Which isn’t always easy for her. Anyone reviewing her resume would quickly grasp Hill’s stance on issues like reproductive rights. Hill refers to herself as “very prochoice,” and says she “obviously falls on the liberal side.”

But even in the midst of litigating Preterm v. Yost, Hill draws a clear line between her role as a strong legal advocate—and an even-handed educator. In other words, she knows the importance of providing students all perspectives on legal questions, not simply her own.

“Your whole job as a lawyer and a law professor is to teach students to see the other side of arguments,” she said. “No law school classroom should ever present just one side of an issue.

“And I think that’s what makes you a better lawyer.”

In early August, a day after Indiana’s legislators voted to ban abortion without exceptions for rape or incest, Hill sits at her desk. Around her are hundreds of books on legal philosophy next to boxed figurines of Breaking Bad characters and the late Ruth Bader Ginsburg. Above them are framed photos of her two teenage daughters.

It’s a reality Hill said she’s confronted more than ever since June: How will Ohio’s future of reproductive rights in a post-Roe environment impact her family? After all, Hill believes that, if the Ohio courts and legislature lean Republican in November, related reproductive healthcare issues— the legality of emergency contraception, birth control and in-vitro fertilization, for example—“are on the chopping block.”

Potential bans, she suggested, that are pertinent to young Ohioans. “My daughters, they’re very pro-choice, too, but I don’t think that this has really hit them the way it’s hit me,” Hill said. “It’s them that I’m doing this for, in a lot of ways. Right? It’s their future.”

As the legal lodestar of Ohio’s pro-choice culture, Hill said she never bemoans her endless schedule—about 25 grant-funded hours a week these days, in addition to her teaching duties—or any dread of impending legislation.

“It is a lot,” she said, exhaling. “I’ve been exhausted and I can’t even tell you—the past month has been so hard. But I also feel like I’m really lucky to be here right now doing this work, because … if I weren’t?”