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Preterm-Cleveland v. Yost

United States District Court, S.D. Ohio, Western Division

July 3, 2019

Preterm-Cleveland, et al., Plaintiffs,
David Yost, et al., Defendants.


          Michael R. Barrett, Judge.

         On May 15, 2019, Plaintiffs Preterm-Cleveland, Planned Parenthood Southwest Ohio Region, Sharon Liner, M.D., Planned Parenthood of Greater Ohio, Women's Med Group Professional Corporation, and Capital Care Network of Toledo (collectively, “Plaintiffs”) filed a Verified Complaint challenging the constitutionality of Ohio Senate Bill 23 of the 133rd General Assembly. (Doc. 1). With their Verified Complaint, Plaintiffs filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction. (Doc. 2). During the informal conference held on May 20, 2019 pursuant to S.D. Ohio Civ. R. 65.1, Plaintiffs advised the Court of their preference for a ruling only on their Motion for Preliminary Injunction (and not their Motion for a Temporary Restraining Order) in light of the July 11, 2019 effective date of the statute. Plaintiffs and the Ohio Attorney General agreed that there was no need for discovery or an evidentiary hearing. They established a briefing schedule, and asked that the Court render its decision by July 5, 2019 based on the memoranda alone. This Order follows.

         I. BACKGROUND

         A. Statutory Framework Giving Rise to Plaintiffs' Complaint

         The Ohio General Assembly passed Senate Bill 23 (“S.B. 23” or the “Act”), also known as the “Heartbeat Protection Act, ” on April 10, 2019. Governor Mike DeWine signed the bill into law the next day, April 11, 2019. It is set to go into effect on July 11, 2019. Ohio law already requires an abortion provider to first determine whether there is detectable cardiac activity.[1] Once in effect, the Act will make it a crime to “caus[e] or abet[] the termination of” the pregnancy. S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(A).

         The Act has two exceptions. S.B. 23 allows abortion care after cardiac activity is detected only if the abortion is necessary to prevent the patient's death or “a serious risk of the substantial and irreversible impairment of a major bodily function.” S.B. 23, § 1, amending Ohio Rev. Code § 2919.195(B). “‘Serious risk of substantial and irreversible impairment of a major bodily function' means any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function, ” which “includes pre-eclampsia, inevitable abortion, and premature rupture of the membranes[ and] may include, but is not limited to, diabetes and multiple sclerosis[ but] does not include a condition related to the woman's mental health.” Ohio Revised Code § 2919.16(K).

         A violation of the Act is a fifth-degree felony, punishable by up to one year in prison and a fine of $2, 500. S.B. 23 § 1, amending Ohio Rev. Cod. § 2919.195(A); Ohio Rev. Code §§ 2929.14(A)(5), 2929.18(A)(3)(e). The state medical board may assess a forfeiture of up to $20, 000 for each violation of the Act, S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(A), and limit, revoke, or suspend a physician's medical license based on a violation of the Act, see Ohio Rev. Code § 4371.22(B)(10). A patient also may bring a civil action against a provider who violates the Act and recover damages in the amount of $10, 000 or more. S.B. 23 § 1, amending Ohio Rev. Code § 2919.199 (B)(1).

         B. Plaintiffs' Verified Complaint

         In a nutshell, S.B. 23 bans abortion care at and after approximately six weeks in pregnancy. And, in so doing, according to Plaintiffs-a collection of reproductive health care clinics and physicians providing abortion care-violates a woman's right to privacy as guaranteed by the Fourteenth Amendment.

         In a normally developing embryo, cells that form the basis for development of the heart later in gestation produce activity that can be detected with ultrasound. (Doc. 1 ¶ 30 at PageID 10). Consistent with common medical practice, as well as existing law, see Ohio Rev. Code § 2919.191(A), Plaintiffs perform an ultrasound to date the pregnancy and to determine whether there is any detectable cardiac activity. (Id. ¶ 31). An ultrasound can be performed in one of two ways: either by placing a transducer on the patient's abdomen or by inserting a probe into the patient's vagina. (Id.). Many abortion providers, including those at the clinics that are Plaintiffs in this civil action, use vaginal ultrasound to confirm and date early pregnancy. (Id.). Using vaginal ultrasound, cardiac activity generally is detectable at approximately six weeks in pregnancy, or six weeks LMP.[2] (Id. ¶ 32 at PageID 11). At six weeks LMP, an embryo[3]is not capable of surviving outside the womb. (Id. ¶ 34). In other words, it is a pre-viability point in pregnancy. (Id.).

         At six weeks LMP, many women are unaware that they are pregnant. (Id. ¶ 36). Typically the menstrual cycle is approximately four weeks long, but varies based on the individual. (Id.). Assuming a woman has consistently regular periods, she would be considered four weeks pregnant as measured from her LMP when her missed period occurs. (Id.). Those who have irregular periods-caused by common medical conditions, contraceptive use, age or breastfeeding-or those who experience bleeding during early pregnancy that could be mistaken for a period may not even realize that they missed a period. (Id. ¶¶ 37-39 at PageID 11-12). But assuming a patient does know that she is pregnant, there are certain logistical obstacles to obtaining abortion care before six weeks in pregnancy. (Id. ¶ 40 at PageID 12). She will need to schedule an appointment, make sure of payment, [4] and arrange for transportation, time off of work and possibly childcare[5] during appointments. (Id. ¶ 42). A minor patient, unless emancipated, also must obtain written parental consent or a court order. (Id. ¶ 43; Ohio Rev. Code § 2919.121). And all patients, regardless of age, must make two in-person trips-at least 24 hours apart-to the clinic before they can obtain an abortion. (Doc. 1 ¶¶ 41, 43 at PageID 12; Ohio Rev. Code § 2317.56). These reasons explain why the vast majority of abortions in Ohio-approximately 90%-take place at or after six weeks LMP. (Doc. 1 ¶44 at PageID 13). S.B. 23, therefore, will prohibit almost all abortion care in Ohio. (Id. ¶ 45).

         II. ANALYSIS

         As final relief, Plaintiffs seek an Order from this Court declaring the Act unconstitutional, and a permanent injunction barring its enforcement. The purpose of a preliminary injunction is to preserve the status quo prior to entry of the final order. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). In considering a preliminary injunction, the court considers four elements: "(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction." City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (citations omitted). “These four considerations are factors to be balanced, not prerequisites that must be met.” Kessler v. Hrivnak, No. 3:11-cv-35, 2011 WL 2144599, at *3 (S. D. Ohio May 31, 2011). "Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal." Id. (citation omitted)

         A. ...

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