Reproductive Freedom on the Docket

Planned Parenthood Southwest Ohio Region et al. v. Hodges et al.

This case falls into the legal category of:

Status:
Active
Case Dates:
Tuesday, 1 September, 2015 - ongoing
Facts:

Ohio law requires that all surgical abortions must be performed in ambulatory surgical facilities that maintain a written transfer agreement with a local hospital. In its 2013 biennial budget bill, H.B. 59, Ohio tightened these restrictions by preventing abortion clinics from obtaining the necessary transfer agreement from public hospitals and by prescribing difficult requirements for abortion centers that seek a variance of the written transfer agreement requirement.

In its 2015 biennial budget bill, H.B. 64, Ohio added additional, and even more onerous, provisions: a facility’s license would be automatically suspended if the Ohio Department of Health either denies – or simply fails to act on – a variance application within 60 days. The automatic suspension provision would have taken effect on September 29, 2015 and would have put facilities at risk of being forced to shut down nearly immediately with no opportunity for a hearing.

Legal Theory:

The provisions of H.B. 59 and H.B. 64 in question violate women’s rights to liberty and privacy under the Fourteenth Amendment because they impose an undue burden on women’s right to terminate their pregnancies, and they violate the right to due process because they endow private parties with standardless, unreviewable authority. . Further, these provisions violate abortion clinics’ right to equal protection by treating them differently from other similarly situated parties, and they violate clinics’ due process rights by denying them procedural protections. Finally, these provisions violate the One-Subject Rule under the Ohio Constitution, which prohibits logrolling, or the practice of injecting unrelated provisions into a single bill.

Status:

We filed our Complaint and Motion for Preliminary Injunction on September 1, 2015 in the United States District Court for the Southern District of Ohio. Plaintiffs are Planned Parenthood Southwest Ohio Region (“PPSWO”) and Women’s Med Group Professional Corporation. We serve in an of-counsel capacity for Women’s Med Group.

The Plaintiff organizations operate the last two remaining ambulatory surgical facilities providing abortions in Southwest Ohio. Original Defendants were now-ex-Ohio Department of Health Director Richard Hodges in his official capacity, plus the University of Cincinnati Medical Center (“UCMC”), and UC Health. The only current remaining Defendant is the Director of ODH (see below).

Our Complaint seeks a declaratory judgment that the provisions of H.B. 59 and H.B. 64 in question are facially unconstitutional as applied to our plaintiffs, and seeks a permanent injunction preventing Defendant Hodges from enforcing these provisions. Our Motion for Preliminary Injunction sought to prevent Defendant Hodges from suspending the plaintiff facilities’ licenses when the relevant provisions of H.B. 64 were to have gone into effect on September 29, 2015.

On September 30, 2015, the Court issued a Temporary Restraining Order preventing the state from closing PPSWO’s facility until October 13. On October 13, 2015, our Motion for Preliminary Injunction was granted, preventing the Ohio Department of Health from enforcing the provisions of H.B. 64 in question and from suspending PPSWO’s license.

After a series of briefings beginning November 2, 2015, and an amended complaint to provide additional factual support for our claims and clarify the relief requested, on September 21, 2016 the judge dismissed the claims again UCMC and UC Health. We then filed our amended complaint on October 7, and remaining Defendant Hodges filed his answer on October 17.

We had begun discovery under a schedule that would have culminated in a bench trial starting on December 1, 2017. On May 17, 2017, however, Defendant filed a motion to stay discovery and suspend the case schedule pending the Ohio Supreme Court’s decision in Capital Care Network of Toledo v. State of Ohio Department of Health, an appeal of a 2016 decision blocking the State from closing Toledo’s last abortion clinic because the clinic lacked a written transfer agreement. On June 6, the Court held a status conference. On June 20, the court entered an order vacating the December 1 trial date. However the court did not suspend the discovery requests that were then pending, and its order permitted the parties to continue conducting limited discovery, including depositions, by agreement.

On February 6, 2018, the Ohio Supreme Court issued a decision in Capital Care Network, ruling that the Ohio Department of Health was within its rights to revoke Capital Care’s license because the clinic lacked a written transfer agreement. (Capital Care subsequently entered into a written transfer agreement, approximately one week later, with ProMedica Hospital of Toledo to provide emergency medical care. This prevented Capital Care, for the time being, from having to close.)

Subsequently, we proceeded in discovery by taking and defending depositions, seeking and producing documents, and engaging in several discovery disputes by motion. As a result of the ongoing discovery disputes, the Court has repeatedly delayed the case schedule by minute order and through informal status conferences. The most recent status conference took place on May 29, 2019.

On June 24, WMCD contracted with an additional backup physician.

On September 9, we filed a motion requesting leave to file a brief in excess of 20 pages, as well as a request to file documents under seal in anticipation of needing to file a Motion for Temporary Restraining Order. On September 13 the court granted our request to file documents under seal.

On October 29, the Ohio Supreme Court refused to hear WMCD’s state-court appeal of its former variance application.

ODH ultimately denied WMCD’s most recent variance application, instead directing the clinic to apply for a new license. ODH’s approval of the new license application is contingent on an inspection it performed on November 4. As a result, WMCD remained open for medical abortions, but was unable to perform surgical abortions. We filed our Motion for TRO on October 29 along with supporting declarations, and asked the Judge to rule immediately so that the clinic could resume its full range of services in the interim.
On November 12, ODH granted the clinic a new license and it was fully back in business by the morning of the next day. The judge subsequently ruled on our Motion for TRO as moot. We are continuing with fact and expert discovery.