Facts

During the December 2020 lame duck session, the Ohio General Assembly passed SB27, a law that radically changes how abortion clinics must manage tissue from a surgical abortion.  The law does not apply to tissue from medical abortions or to miscarriages; it singles out surgical abortions and requires tissue from those abortions to be cremated or interred.

SB27 took effect on April 6, 2021, and applies to all fetal remains, which it defines to include a “zygote, blastocyte, embryo, or fetus.” Currently, all such tissue is handled in accordance with laws regulating infectious waste, similar to other tissue removed during medical procedures. 

The new law also requires that before any surgical abortion occurs, state-created forms and reports must be used to document and enable the cremation or interment of the tissue, and that the Ohio Department of Health (ODH) must adopt rules and prescribe these forms.  A 30-day period of notice and opportunities for hearings and comment are required before ODH can adopt any rules. At the time this case was filed, ODH had not even begun this process. As a result, abortion providers would have lacked the state-issued forms needed to comply with SB27 when it became effective on April 6.

Status

On March 9, 2021 we filed a Complaint in the Hamilton County Court of Common Pleas on behalf of Planned Parenthood and other Ohio abortion providers. We also filed a Motion for Temporary Restraining Order and Preliminary Injunction. Defendants filed their opposition to our Motion on March 11. Our TRO was denied on March 12. 

On March 18, State Defendants removed the case to federal court in the Southern District of Ohio. Defendant Zach Klein, Columbus City Attorney, filed an opposition to the removal on March 19. 

Because the case was (temporarily) pending in federal court, Plaintiffs filed their Reply in support of their motion for a Preliminary Injunction in the Southern District of Ohio on March 21. After expedited briefing in federal court on the issue of the removal, the case was remanded to Hamilton County, and the federal court ordered the state to pay the plaintiffs’ attorneys’ fees incurred in opposing defendants’ inappropriate removal of the case to federal court.

On March 29, Defendants, attempting again to find a jurisdiction they considered more favorable, filed a motion to transfer venue from Hamilton County to Franklin County Court of Common Pleas. The Hamilton County court denied the transfer on April 5. Also on April 5, the Court granted the preliminary injunction, preventing enforcement of SB27 until 30 days after rules and forms have been adopted according the notice-and-comment rulemaking process. The time for the state to appeal the preliminary injunction has expired.  

As of now, the formal rule-making process has not started, but ODH has posted draft rules for feedback. 

Defendants filed their Answer on May 11.

On October 25, 2021, ODH issued proposed rules to implement SB27. These proposed rules were adopted on December 30, 2021 and will become effective on January 9, 2022. Plaintiffs will have to come into compliance with SB27 on February 8, 2022. 

The new rules continue to pose impossible hurdles for abortion clinics. So on January 7, 2022 we filed an Amended Complaint and a Motion for a second Preliminary Injunction. Judge Hatheway entered a scheduling order on January 10. Defendants’ Response to our PI motion is due January 19 and our Reply is due January 26. There will be a hearing on the Motion for Preliminary Injunction at 10 AM on January 28. . On January 31, the Court granted our Motion. A case management conference was held on February 15, and a litigation schedule was set by the court.

Court

Hamilton County Common Pleas

Judge

Alison Hatheway

Status

Active

Case number

A21 00870