Case: Preterm-Cleveland v. Attorney General of Ohio

1:19-cv-00360 | U.S. District Court for the Southern District of Ohio

Filed Date: May 15, 2019

Closed Date: July 7, 2022

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Case Summary

COVID-19 Summary: This is an ongoing lawsuit regarding Ohio state legislation that would criminalize certain abortions that was amended to include a request for relief in light of COVID-19. The plaintiffs sought a temporary restraining order against the Department of Health's order which had banned all "non-essential surgeries and procedures" starting on March 18, 2020. The judge granted the temporary restraining order for a period of 14 days, which was affirmed by the Sixth Circuit on April 6, 2020. The judge granted a preliminary injunction on April 23, 2020, which allowed abortions in situations where a medical provider determined that a delay would not be possible. The case was later voluntarily dismissed in light of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization.

On May 15, 2019, the plaintiffs, for-profit and non-profit providers of medical and surgical abortions in Ohio and their doctors, filed an initial complaint in the U.S. District Court for the Southern District of Ohio against the Ohio State Department of Health, the State Medical Board of Ohio, and various county prosecutors. They contested the Ohio State Legislature's 6-week abortion ban, passed on April 10th of that year. The plaintiffs, represented by the American Civil Liberties Union (ACLU) of Ohio and the Planned Parenthood Foundation, sought a temporary restraining order, preliminary and permanent injunctive relief, and costs under 42 U.S.C. § 1983 and 28 U.S.C. § 2201. The case was assigned to Judge Michael R. Barrett.

Specifically, the plaintiffs alleged that Ohio S.B. 23—which would criminalize all abortions in which a fetal heartbeat could be detected (six weeks gestational age), except in cases that would jeopardize the health of the mother—would practically eliminate abortion in Ohio, because it often takes women longer than six weeks to determine that they are pregnant. They claimed that this violated the substantive due process precedent outlined in Roe v. Wade.

On May 24, 2019, the court related this case with another case, Preterm-Cleveland v. Himes, 1:18-cv-00109, but determined that each case should remain with its assigned judge.

The district court granted the plaintiffs’ motion for a preliminary injunction on July 3, 2019, in advance of the statute's effective date of July 11, 2019. Relying on Supreme Court precedent in Roe v. Wade and Planned Parenthood v. Casey, the court found that the Ohio law was likely unconstitutional on its face and that the plaintiffs were therefore likely to succeed on the merits. The court also found that enacting the ban would cause irreparable harm to Ohio women. 394 F.Supp.3d 796.

After the district court’s order, the plaintiffs moved for judgment on the pleadings on August 20, 2019. Before the court ruled on the pending motion, the Ohio Department of Health issued an order banning all "non-essential surgeries and procedures" starting on March 18, 2020 in order to preserve personal protective equipment (PPE) and hospital capacity in light of the COVID-19 pandemic. The text of the order indicated that the ban would apply to nearly all surgical abortions. In response to the new order, the plaintiffs filed an amended complaint on March 30, 2020. The plaintiffs argued that surgical abortions did not use a significant amount of PPE and might be the only option for patients allergic to medical abortion pills, as well as patients past a certain gestational age. They further argued that, if the pandemic were to continue for many months, prohibiting surgical abortions would not actually conserve critical resources, since patients would eventually be forced to give birth and thereby consume more PPE, as well as occupy hospital beds. They also claimed that forcing patients to wait until the pandemic passed would not be sufficient, since abortion is a time-sensitive procedure. The complaint also added an equal protection claim that abortion providers were unfairly being singled out in comparison to other businesses. The plaintiffs asked the court to issue a temporary restraining order to enjoin enforcement of the March 17 order, in addition to the same relief requested in the initial complaint.

Judge Barrett granted the plaintiffs’ motion and issued a temporary restraining order enjoining enforcement of the March 17 order the very same day. The temporary restraining order was to last for 14 days and was limited to situations where a medical provider decided that delaying a surgical abortion until after the pandemic subsided would not be possible. 2020 WL 1932851. On April 2, 2020, the court denied a motion by the defendants to stay the temporary restraining order. The court reiterated the fact that it had carefully limited the order to ensure that the plaintiffs could provide surgical abortions on a case-by-case basis if necessary, but maintained that it did not permit a blanket “on-demand provision of election abortions.” 2020 WL 1932492.

The defendants filed an interlocutory appeal contesting the temporary restraining order on April 1, 2020. A Sixth Circuit panel, composed of Chief Judge R. Guy Cole and Judges Ralph B. Guy and John K. Bush, declined to vacate the temporary restraining order on April 6, 2020, finding that the narrow tailoring of the restraining order meant that few abortions would be performed and PPE supplies would not be diminished. They stressed that the time sensitive nature of abortions justified this protection. 2020 WL 1673310.

In order to preserve the status quo before ruling on the preliminary injunction, the district court extended the temporary restraining order for an additional two weeks on April 10, 2020. 2020 WL 1932540. On April 23, 2020, the court granted the plaintiffs’ motion for a preliminary injunction. The court reasoned that, while unnecessary medical procedures generally should not be performed in Ohio during the pandemic, waiting to have an abortion was not an option in certain circumstances. As before, the court limited the bounds of the preliminary injunction to situations where a medical provider determined that a delay would not be possible. 2020 WL 1957173.

On March 3, 2021, the court stayed the case pending final disposition of all appeals and petitions for certiorari in Preterm-Cleveland v. Himes and Memphis Center for Reproductive Health v. Slatery.

On June 24, 2022, the defendants filed an emergency motion to vacate the injunction citing the Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization, overturning Roe v. Wade and eliminating the constitutional right to abortion. Since the Court no longer recognized a constitutional right to abortion, the defendants argued that the law withstood the lower rational basis review. The court granted the motion on the same day and dissolved the preliminary injunction. 2022 WL 2290526. The plaintiffs immediately withdrew their earlier motion for judgment on the pleadings.

	Document
1:19-cv-00360	Docket [PACER]	May 7, 2020	May 7, 2020 Docket
29 1:19-cv-00360	Order Granting Plaintiffs' Motion for Preliminary Injunction	July 3, 2019	July 3, 2019 Order/Opinion
43 1:19-cv-00360	Temporary Restraining Order	March 30, 2020	March 30, 2020 Order/Opinion
39 (& 39-1 to 39-4) 1:19-cv-00360	Expedited Motion to File Supplemental Complaint	March 30, 2020	March 30, 2020 Pleading / Motion / Brief
42 (& 42-1 to 42-6) 1:19-cv-00360	Motion for and Brief in Support of Temporary Restraining Order and/or Preliminary Injunction	March 30, 2020	March 30, 2020 Pleading / Motion / Brief
48 (& 48-1 to 48-3) 1:19-cv-00360	Supplement to Verified Complaint for Declaratory and Injunctive Relief	March 31, 2020	March 31, 2020 Complaint
52 1:19-cv-00360	Order	April 2, 2020	April 2, 2020 Order/Opinion
57 1:19-cv-00360	Order U. S. Court of Appeals for the Sixth Circuit	April 7, 2020	April 7, 2020 Order/Opinion
63 1:19-cv-00360	Temporary Restraining Order	April 10, 2020	April 10, 2020 Order/Opinion
78 1:19-cv-00360	Order Granting Plaintiffs' Motion for Preliminary Injunction	April 23, 2020	April 23, 2020 Order/Opinion

Title	Description		External URL Date / External URL
Reproductive Freedom on the Docket ACLU Ohio	On April 10, 2019 the Ohio Legislature passed Senate Bill 23, called the “Heartbeat Bill,” and Governor DeWine signed the bill into law on April 11. The bill, effectively a total ban on abortion, was…	May 15, 2019	May 15, 2019 https://www.acluohio.org/...
Preterm Cleveland v. Yost ACLU	The American Civil Liberties Union, ACLU of Ohio, and Planned Parenthood filed a lawsuit in June of 2019 challenging an Ohio law banning abortion as early as six weeks into pregnancy. This law would …	June 3, 2019	June 3, 2019 https://www.aclu.org/...

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT against All Defendants ( Filing fee $ 400 paid - receipt number: 0648-6925711), filed by Planned Parenthood Southwest Ohio Region, Preterm-Cleveland, Capital Care Network of Toledo, Sharon Liner, Planned Parenthood of Greater Ohio, Women's Med Group Professional Corporation. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet, # 2 Exhibit Exhibit A - S.B. 23) (Hill, Beatrice) (Entered: 05/15/2019) 1 Civil Cover Sheet Civil Cover Sheet View on PACER 2 Exhibit Exhibit A - S.B. 23 View on RECAP	May 15, 2019	May 15, 2019 Clearinghouse
2	MOTION for Preliminary Injunction and/or Temporary Restraining Order by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Attachments: # 1 Text of Proposed Order Proposed Order for Temporary Restraining Order, # 2 Text of Proposed Order Proposed Order for Preliminary Injuction) (Hill, Beatrice). Added MOTION for Temporary Restraining Order on 5/15/2019 (sct). (Entered: 05/15/2019) 1 Text of Proposed Order Proposed Order for Temporary Restraining Order View on PACER 2 Text of Proposed Order Proposed Order for Preliminary Injuction View on PACER	May 15, 2019	May 15, 2019 RECAP
3	Corporate Disclosure Statement by Plaintiff Preterm-Cleveland. (Hill, Beatrice) (Entered: 05/15/2019)	May 15, 2019	May 15, 2019 PACER
4	NOTICE of Appearance by Beatrice Jessie Hill for Plaintiff Preterm-Cleveland (Hill, Beatrice) (Entered: 05/15/2019)	May 15, 2019	May 15, 2019 PACER
5	NOTICE of Appearance by Freda J Levenson for Plaintiff Preterm-Cleveland (Levenson, Freda) (Entered: 05/15/2019)	May 15, 2019	May 15, 2019 PACER
6	NOTICE of Appearance by Jennifer Lynn Branch for Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Women's Med Group Professional Corporation (Branch, Jennifer) (Entered: 05/15/2019)	May 15, 2019	May 15, 2019 RECAP
7	MOTION for Leave to Appear Pro Hac Vice (Filing fee of $400 paid, receipt number 0648-6925980) of Melissa Cohen and Richard Muniz by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Women's Med Group Professional Corporation. (Attachments: # 1 Exhibit Melissa Cohen Certificate of Good Standing, # 2 Exhibit Richard Muniz Certificate of Good Standing) (Branch, Jennifer) (Entered: 05/15/2019) 1 Exhibit Melissa Cohen Certificate of Good Standing View on PACER 2 Exhibit Richard Muniz Certificate of Good Standing View on PACER	May 15, 2019	May 15, 2019 PACER
	If this case is referred, it will be to Magistrate Judge Karen L. Litkovitz. (jlw)	May 15, 2019	May 15, 2019 PACER
	Docket Annotation	May 15, 2019	May 15, 2019 PACER
9	NOTICE of Appearance by Heather L. Buchanan for Defendant Attorney General of Ohio (Buchanan, Heather) (Entered: 05/16/2019)	May 16, 2019	May 16, 2019 PACER
	Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 5/20/2019; Jennifer Branch, Beatrice Hill, Freda Levenson and Melissa Cohen appeared for Plaintiff; Elizabeth Watson appeared for Plf Preterm-Cleveland; Heather Buchanan and Bridgette Coontz appeared for Dft Ohio Attorney General; case to proceed with briefing re 2 MOTION for Preliminary Injunction; Order to follow. (ba) Modified on 5/22/2019 (ba) to correct the entry regarding appearance. A NEF will be regenerated. Modified on 6/5/2019 (ba) to edit text to correct attorney appearance.	May 20, 2019	May 20, 2019 PACER
	Status Conference	May 20, 2019	May 20, 2019 PACER
	Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 5/20/2019; Jennifer Branch, Beatrice Hill and Freda Levenson appeared for Plaintiff; Heather Buchanan and Bridgette Coontz appeared for Dft Ohio Attorney General; Elizabeth Watson and Melissa Cohen appeared for Dft ACLU; case to proceed with briefing re 2 MOTION for Preliminary Injunction; Order to follow. (ba)	May 20, 2019	May 20, 2019 PACER
	~Util - Set Motion and R&R Deadlines/Hearings	May 20, 2019	May 20, 2019 PACER
	Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 5/20/2019; Jennifer Branch, Beatrice Hill, Freda Levenson and Melissa Cohen appeared for Plaintiff; Heather Buchanan and Bridgette Coontz appeared for Dft Ohio Attorney General; Elizabeth Watson appeared for Dft ACLU; case to proceed with briefing re 2 MOTION for Preliminary Injunction; Order to follow. (ba) Modified on 5/22/2019 (ba) to correct the entry regarding appearance. A NEF will be regenerated.	May 20, 2019	May 20, 2019 PACER
10	RELATED CASE MEMORANDUM ORDER: The Judges agree that this case and case number 1:18cv109 are related, the subject case nevertheless will remain with the Judge to who it was assigned. Signed by Judge Michael R. Barrett and Judge Timothy S. Black on 5/17/19. (ba) (Entered: 05/24/2019)	May 24, 2019	May 24, 2019 RECAP
11	NOTICE of Appearance by Ward Coker Barrentine for Defendant Montgomery County Prosecutor (Barrentine, Ward) (Entered: 05/29/2019)	May 29, 2019	May 29, 2019 PACER
12	MOTION for Leave to Appear Pro Hac Vice (Filing fee of $600 paid, receipt number 0648-6947719) of Elizabeth Watson, Rachel Reeves, Brigitte Amiri by Plaintiff Preterm-Cleveland. (Attachments: # 1 Exhibit Reeves Certificate of Good Standing, # 2 Exhibit Watson Certificate of Good Standing, # 3 Exhibit Amiri Certificate of Good Standing) (Levenson, Freda) (Entered: 05/31/2019) 1 Exhibit Reeves Certificate of Good Standing View on PACER 2 Exhibit Watson Certificate of Good Standing View on PACER 3 Exhibit Amiri Certificate of Good Standing View on PACER	May 31, 2019	May 31, 2019 PACER
13	NOTICE of Appearance by John A Borell, Sr and Kevin A Pituch for Defendant Lucas County Prosecutor (Borell, John) Modified on 6/3/2019 (jlw). (Entered: 06/02/2019)	June 2, 2019	June 2, 2019 RECAP
14	ORDER granting 7 Motion for Leave to Appear Pro Hac Vice of Melissa Cohen and Richard Muniz for Plaintiffs Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio. Signed by Judge Michael R. Barrett on 6/4/19. (ba) (Entered: 06/04/2019)	June 4, 2019	June 4, 2019 PACER
15	ORDER granting 12 Motion for Leave to Appear Pro Hac Vice of Elizabeth Watson, Rachel Reeves and Brigitte Amiri for Plaintiff Preterm-Cleveland. Signed by Judge Michael R. Barrett on 6/4/19. (ba) (Entered: 06/04/2019)	June 4, 2019	June 4, 2019 PACER
16	NOTICE of Appearance by Bridget C Coontz for Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board (Coontz, Bridget) (Entered: 06/05/2019)	June 5, 2019	June 5, 2019 PACER
17	RESPONSE in Opposition re 2 MOTION for Preliminary Injunction and/or Temporary Restraining Order MOTION for Temporary Restraining Order filed by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Attachments: # 1 Exhibit A SB 23 Bill Analysis, # 2 Exhibit B SB 23 Sponsor Testimony, # 3 Exhibit C SB 23 Proponent Testimony-Dennis Sullivan MD, # 4 Exhibit D SB 23 Testimony of K. Aultman, MD, # 5 Exhibit E SB 23 Announcement of Committee Meeting, # 6 Exhibit F SB 23 Proponent Testimony-David Forte) (Buchanan, Heather) (Entered: 06/05/2019) 1 Exhibit A SB 23 Bill Analysis View on PACER 2 Exhibit B SB 23 Sponsor Testimony View on PACER 3 Exhibit C SB 23 Proponent Testimony-Dennis Sullivan MD View on PACER 4 Exhibit D SB 23 Testimony of K. Aultman, MD View on PACER 5 Exhibit E SB 23 Announcement of Committee Meeting View on PACER 6 Exhibit F SB 23 Proponent Testimony-David Forte View on PACER	June 5, 2019	June 5, 2019 RECAP
18	NOTICE of Appearance by Arthur James Marziale, Jr for Defendant Franklin County Prosecutor (Marziale, Arthur) (Entered: 06/11/2019)	June 11, 2019	June 11, 2019 PACER
19	NOTICE of Appearance by Pamela J Sears for Defendant Hamilton County Prosecutor (Sears, Pamela) (Entered: 06/12/2019)	June 12, 2019	June 12, 2019 PACER
20	NOTICE of Appearance by Michael Gerard Florez for Defendant Hamilton County Prosecutor (Florez, Michael) (Entered: 06/12/2019)	June 12, 2019	June 12, 2019 PACER
21	NOTICE by Defendants Cuyahoga County Prosecutor, Franklin County Prosecutor, Hamilton County Prosecutor, Lucas County Prosecutor, Mahoning County Prosecutor, Montgomery County Prosecutor, Richland County Prosecutor Notice to Court Regarding Defense Provided By County Prosecutor Defendants (Sears, Pamela) (Entered: 06/13/2019)	June 13, 2019	June 13, 2019 RECAP
22	NOTICE of Appearance by James J. Barbiere for Defendant Hamilton County Prosecutor (Barbiere, James) (Entered: 06/13/2019)	June 13, 2019	June 13, 2019 RECAP
23	REPLY to Response to Motion re 2 MOTION for Preliminary Injunction and/or Temporary Restraining Order MOTION for Temporary Restraining Order filed by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Hill, Beatrice) (Entered: 06/19/2019)	June 19, 2019	June 19, 2019 PACER
24	NOTICE by Defendant Attorney General of Ohio re 21 Notice (Other), Notice of Defendant Ohio Attorney General Dave Yost Regarding County Prosecutors Notice (Buchanan, Heather) (Entered: 06/19/2019)	June 19, 2019	June 19, 2019 PACER
25	WAIVER OF SERVICE Returned Executed. Waiver sent to Attorney General of Ohio on 6/11/2019, answer due 8/12/2019. (Hill, Beatrice) (Entered: 06/25/2019)	June 25, 2019	June 25, 2019 PACER
26	WAIVER OF SERVICE Returned Executed. Waiver sent to Director Ohio Department of Health on 6/11/2019, answer due 8/12/2019. (Hill, Beatrice) (Entered: 06/25/2019)	June 25, 2019	June 25, 2019 PACER
27	WAIVER OF SERVICE Returned Executed. Waiver sent to Secretary, State Medical Board of Ohio on 6/11/2019, answer due 8/12/2019. (Hill, Beatrice) (Entered: 06/25/2019)	June 25, 2019	June 25, 2019 PACER
28	WAIVER OF SERVICE Returned Executed. Waiver sent to Supervising Member, State Medical Board on 6/11/2019, answer due 8/12/2019. (Hill, Beatrice) (Entered: 06/25/2019)	June 25, 2019	June 25, 2019 PACER
29	ORDER granting 2 Motion for Preliminary Injunction; bond waived. Signed by Judge Michael R. Barrett on 7/3/19. (ba) (Entered: 07/03/2019)	July 3, 2019	July 3, 2019 Clearinghouse
30	ANSWER to 1 Complaint, filed by Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Coontz, Bridget) (Entered: 08/12/2019)	Aug. 12, 2019	Aug. 12, 2019 PACER
31	MOTION for Judgment on the Pleadings by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Hill, Beatrice) (Entered: 08/20/2019)	Aug. 20, 2019	Aug. 20, 2019 RECAP
	Notice of Deadline	Aug. 21, 2019	Aug. 21, 2019 PACER
	NOTICE of Deadline: Rule 26(f) Report due by 9/11/2019. Please be aware that the Court has revised its Rule 26(f) report and joint final pretrial order forms as well as its trial procedures; visit www.ohsd.uscourts.gov/FPbarrett to obtain copies of those required forms; (ba)	Aug. 21, 2019	Aug. 21, 2019 PACER
32	MOTION for Extension of Time to File Response/Reply as to 31 MOTION for Judgment on the Pleadings New date requested 10/10/2019. by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion for Extension of Time to Respond to MJP) (Buchanan, Heather) (Entered: 09/05/2019) 1 Text of Proposed Order Proposed Order Granting Motion for Extension of Time to R View on PACER	Sept. 5, 2019	Sept. 5, 2019 PACER

Case: Preterm-Cleveland v. Attorney General of Ohio

1:19-cv-00360 | U.S. District Court for the Southern District of Ohio

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