United States District Court, S.D. Ohio, Western Division
ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY
Michael R. Barrett, Judge.
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.
Statutory Framework Giving Rise to Plaintiffs'
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. 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
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
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).
Plaintiffs' Verified Complaint
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
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
(Id. ¶ 32 at PageID 11). At six weeks LMP, an
embryois not capable of surviving outside the
womb. (Id. ¶ 34). In other words, it is a
pre-viability point in pregnancy. (Id.).
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,  and arrange for
transportation, time off of work and possibly
childcare 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).
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)