On December 13, 2017, the Ohio General Assembly passed H.B. 214, referred to by its proponents as the “Down Syndrome Abortion Bill” (“HB 214” or the “Bill”). Governor Kasich signed the Bill on December 22, 2017. The Bill was set to take effect on March 23, 2018. The Bill makes it a fourth degree felony for any person to perform or attempt to perform an abortion, if that person has knowledge that either (a) the woman is seeking the abortion in whole or in part due to a test result or prenatal diagnosis of fetal Down syndrome, or (b) the person performing or attempting to perform the abortion herself has any other reason to believe that the fetus has Down syndrome. A physician who violates HB 214 is also subject to license revocation by the state medical board and to a civil suit by “any person” who sustains injury, death, or loss as a result of the abortion or attempted abortion. The Bill requires the attending physician to state in his or her abortion report that the physician does not have knowledge that the woman sought the abortion because of a test or prenatal diagnosis of Down syndrome, and has no other reason to believe that the fetus has Down syndrome. The Bill contains no exception allowing the abortion to be performed when it is necessary to preserve the health or life of the woman.
The United States Supreme Court has repeatedly and unequivocally held that, under the Due Process Clause of the Fourteenth Amendment, a state may not ban abortion prior to viability of the fetus.
On February 15, 2018, we filed a Complaint and Motion for Temporary Restraining Order and Preliminary Injunction in the U.S. District Court for the Southern District of Ohio, Western Division. The ACLU of Ohio represents Plaintiff Preterm-Cleveland. Additional plaintiffs represented by co-counsel are Planned Parenthood Southwest Ohio Region, Women’s Med Group Professional Corporation, Dr. Roslyn Kade, and Planned Parenthood Greater Ohio. Defendants are the Ohio Department of Health Acting Director Lance Himes, Hamilton County Prosecutor Joseph Deters, Cuyahoga County Prosecutor Michael O’Malley, Montgomery County Prosecutor Mat Heck, Jr., Franklin County Prosecutor Ron O’Brien, Ohio State Medical Board Secretary Dr. Kim Rothermel and Supervising Member Bruce Saferin. The Court determined oral arguments were not needed, and on March 14, granted our motion for a preliminary injunction, blocking the implementation of the law as litigation proceeds.
On April 11 Defendants filed their Answer and their Notice of Appeal of the preliminary injunction to the Sixth Circuit Court of Appeals. On April 30 we filed a Motion for Attorneys’ Fees and Costs for our work during the preliminary injunction phase of litigation. Defendants’ filed their appellate brief on June 22. On June 29 the American Center for Law and Justice filed an amicus brief in support of Defendants, as did 16 states. On August 22 we filed our response brief. Four amicus briefs were filed in support of our position: one by 21 Ohio state legislators; one by seven parents of children with Down syndrome; one by several biomedical ethicists; and one by the Attorney Generals of 17 states.
Defendants’ reply was filed September 19. The parties presented oral arguments to the Sixth Circuit on January 30, 2019. On October 10, the court affirmed the district court’s decision in our favor.
On October 25, Defendants filed a Petition for Rehearing En Banc. On November 8, we were directed by the Court to respond to the petition. We filed our opposition to en banc review on November 20. Defendants replied on November 21. On December 13, the full 6th Circuit Court decided to rehear the appeal en banc and set a briefing schedule.
Supplemental briefing began with the state’s brief filed January 13, 2020, followed by our responsive brief on February 12, and the state’s reply on February 21. Several amici filed briefs in support of each side. The en banc oral argument took place on March 11, 2020, and the case is now submitted for decision. On June 29, Defendants filed a 28(j) Notice of Supplemental Authority in which they argued that the Supreme Court’s recent plurality decision in June Medical Services, LLC v. Russo supports their arguments that the abortion restriction at issue is constitutional. On July 6 we filed a responsive 28(j) Notice, advancing the argument that June Medical did not, as defendants contend, change the legal standards for determining the constitutionality of abortion restrictions, but even if it had, the Ohio statute at issue here is still unconstitutional. On January 5, both parties filed 28(j) Notices of Supplemental Authority regarding the impact of the Eighth Circuit decision that day in Little Rock Family Planning Services v. Rutledge, a decision which upheld the district court’s grant of a preliminary injunction against Arkansas’s abortion reason ban.
Jennifer Branch withdrew as counsel on January 22, 2021, as she became a judge on the Hamilton County Court of Common Pleas.
On April 13, 2021, the Court released its en banc decision, reversing the District Court’s ruling. On May 27, State Defendants filed a Motion for Judgment on the Pleadings. On June 17 we filed our opposition and a cross motion for partial summary judgment for a permanent injunction against enforcement of the law to the extent it contains no maternal health exception. These motions were fully briefed as of July 16, and we now await a decision.
On August 10, 2021, the defendants filed a notice of supplemental authority, arguing that a recently decided Sixth Circuit decision (upholding Tennessee’s 48-day waiting period) supports their position opposing our cross motion for summary judgment. We filed a response on August 17. We continue to await a decision on our motion for a permanent injunction.
On September 10, in Memphis Center et al. v. Slatery, a panel of the 6th Circuit Court of Appeals struck down Tennessee’s reason ban on abortions (which included fetal Down Syndrome.)