Reproductive Freedom on the Docket

Preterm-Cleveland, Inc. v. Kasich, et al.

Status:
Active
Case Dates:
Wednesday, 9 October, 2013 - ongoing
Facts:

House Bill 59 (H.B. 59) was the State of Ohio’s 2014-2015 biennial budget bill. The Ohio House of Representatives introduced H.B. 59 on February 12, 2013, and Governor Kasich signed the bill into law on June 30, 2013. H.B. 59 is 3,747 pages long and contains 551 sections. It amended 2,106, enacts 345, and repealed 174 sections of the Ohio Revised Code. Included in HB 59 were three provisions that restrict women’s access to abortion:

First, the Heartbeat and Informed Consent Provision requires doctors to perform ultrasounds at least 24 hours before performing an abortion to detect the presence of a heartbeat. If a doctor fails to perform the ultrasound and performs the abortion anyway, the patient may sue the doctor, and the doctor can be disciplined by the State Medical Board. If the doctor detects a heartbeat, she or he must provide specific information to the patient including the fact that a heartbeat was detected and the statistical probability of carrying the pregnancy to term. If the doctor fails to provide this information to a patient and performs the abortion, the doctor is subject to criminal prosecution.

Second, H.B. 59’s Written Transfer Agreement Provisions require all surgical facilities operating outside hospitals (known as ambulatory surgical facilities) to make written agreements with local hospitals. These agreements would establish a procedure for the hospital to take on patients from the outside facility. However, because of H.B. 59, the law now prohibits public hospitals from entering into such agreements with facilities that perform non-therapeutic abortions. In addition, public hospitals are prohibited from permitting doctors who have privileges to work at the hospital to use their privileges to circumvent this requirement.

Third, the Parenting and Pregnancy Program Provisions of H.B. 59 create a new substantive program that would channel federal funding from the Temporary Assistance for Needy Families block grant to private, nonprofit organizations. The purpose of the program is to promote childbirth, parenting and alternatives to abortion. The private entities to be funded by this program may not participate in or be associated with abortion-related activities, including abortion counseling or referrals, performing abortion-related medical procedures or engaging in “pro-abortion” advertising.

The plaintiff in this case is Preterm-Cleveland, Inc., an independently run nonprofit organization and Ohio-licensed ambulatory surgical facility. Since 1974, its main mission has been to advance women’s health and reproductive justice by providing safe, respectful and accessible abortion care. The defendants are the State, Governor Kasich, the Cuyahoga County Prosecutor Timothy McGinty, the Ohio Department of Health and its Director, the Ohio Department of Job and Family Services and its Director, and the State Medical Board of Ohio.

Legal Theory:

H.B. 59 violates the One-Subject Rule under the Ohio Constitution, which prohibits logrolling, or the practice of injecting unrelated provisions into a single bill. Because H.B. 59 is a budget bill, all of its provisions must relate to the budgeting or appropriation of state funding. The Heartbeat and Informed Consent Provisions, the Written Transfer Agreement Provisions and the Pregnancy and Parenting Program Provisions do not relate to budgeting and do not involve the appropriation of state funds. Therefore, H.B. 59 is unconstitutional.

Status:

We filed the Complaint on October 9, 2013 in the Cuyahoga County Court of Common Pleas, and Judge Michael Russo was assigned. The State filed its Motion to Dismiss on December 12, 2013, and the County filed its Motion to Dismiss on December 18, 2013. We responded to Defendants’ motions to dismiss on January 24, 2014, and the State filed its Reply on January 31, 2014.

Judge Russo denied Defendants’ motions to dismiss on September 17, 2014 and set a schedule for briefing and discovery. On September 8, 2014, we filed a Motion for Summary Judgment, and then on October 16, 2014, Defendants filed their Answers to our Complaint.

On January 5, 2015, the State filed a Motion for Summary Judgment and a Response to our Motion for Summary Judgment. Defendant Timothy J. McGinty, Cuyahoga County Prosecutor, filed a separate Motion for Partial Summary Judgment and Response to our Motion for Summary Judgment on January 5, 2015. We filed our Reply and Response on February 11, 2015. The State filed its Reply on March 4, 2015. Oral arguments on the Motions for Summary Judgment occurred on March 5, 2015. The parties filed supplemental briefs at the invitation of the Court.

On May 18, 2015, Judge Russo granted the State’s and McGinty’s Motions for Summary Judgment on the grounds that Preterm did not have standing. We filed a notice of appeal on June 6, 2015. On September 3, 2015, we filed our brief; the Appellee’s brief was filed on October 9, 2015, and we filed our Reply on October 22, 2015.

Oral arguments before the Eighth District Court of Appeals were held on January 28, 2016, with cooperating attorney Jessie Hill arguing on behalf of our client Preterm. Arguments were heard by Judges Tim McCormack, Eileen A. Gallagher, and Melody Stewart.

On July 7, 2016, the Eighth District issued its decision reversing the trial court as to standing only, holding that Preterm had standing. The Court remanded to the trial court to decide the case on the merits. On July 15 we filed a motion asking the trial court to rule on the motions for summary judgment without further briefing.

On August 5, Defendants filed a motion to stay further briefing to give them time to appeal to the Ohio Supreme Court on the issue of standing. We filed our opposition on August 12, 2016 but on August 16, the stay was granted.

On August 22, Defendants filed their notice of appeal and memorandum in support of jurisdiction in the Ohio Supreme Court and on August 23, Defendants renewed their motion to stay briefing in the trial court. On August 30, the renewal was granted. We filed our memorandum in opposing jurisdiction on September 21, but the Supreme Court accepted jurisdiction on October 5.

On February 22, 2017, the Ohio Supreme Court accepted Defendants’ jurisdictional appeal. Defendants filed their brief on April 24, 2017; we filed our opposition on June 12, 2017; and Defendants filed their reply on July 24, 2017. Oral arguments were held on September 26, 2017, and we await a ruling.