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.
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.
Defendants filed their Answer on May 11.