Case: Preterm-Cleveland v. Kasich

This case involves a challenge to three abortion-related amendments passed as part of Ohio’s state budget bill. On October 9, 2013 Preterm Cleveland, a state-licensed surgical facility that provides reproductive health services, filed suit challenging Ohio’s 2014-2015 Budget Bill in the Cuyahoga County Court. Represented by the ACLU of Ohio, Preterm Cleveland alleged that the Budget Bill’s inclusion of three provisions relating to abortion violated the bill’s unity of purpose and therefore the one-subject rule of Ohio’s constitution. The case was assigned to Judge Michael Russo.

The provisions plaintiffs challenged were the Heartbeat and Informed Consent Provision, Written Transfer Agreement Provision and the Parenting and Pregnancy Program Provision. The Heartbeat and Informed Consent Provision required doctors to perform ultrasounds at least 24 hours before performing an abortion to detect the presence of a heartbeat. The Written Transfer Agreement Provision required all surgical facilities operating outside hospitals to make written agreements with local hospitals that would establish procedures for the hospital to take on patients from the outside facility, but it simultaneously prohibited public hospitals from entering into such agreements with facilities that perform non-therapeutic abortions. Finally, the Parenting and Pregnancy Program Provision created a new program that would channel federal funding from the Temporary Assistance for Needy Families block grant to private, nonprofit organizations who promote childbirth, parenting and alternatives to abortion. The private entities funded by this program could not participate in or be associated with abortion-related activities, including abortion counseling or referrals, performing abortion-related medical procedures or engaging in “pro-abortion” advertising.

On December 12, 2013 the court denied Ohio’s motion to dismiss, finding that Preterm was threatened with a direct and concrete injury by the Written Transfer Agreement Provision. 

Both parties moved for summary judgment. On May 18, 2015 the trial court granted Ohio’s motion for summary judgment, finding that Preterm lacked standing. The court reasoned that Preterm's assertion of an increased administrative burden as a result of the new law did not constitute a concrete and particularized injury sufficient to constitute standing. The trial court explained its changed opinion on the grounds that review at the summary judgment stage is much broader and therefore permits consideration of a wider range of admissible evidence. Because the court found that Preterm did not have standing, it didn’t rule on Preterm’s one-subject rule allegations. 

On June 5, 2015 Preterm appealed the summary judgement decision to the Ohio Appeals Court. 

On July 7, 2016 the Eighth Appellate District partially reversed the trial court’s summary judgment decision. The court reasoned that because Preterm was subject to certain regulatory provisions of the Bill and faced a threat of prosecution, that Preterm had standing to challenge the law. 

On August 22, 2016, Ohio appealed the Appellate District’s decision to the Ohio Supreme Court. Preterm argued that the Written Transfer and Heartbeat and Informed Consent provisions of the law increased their administrative burdens and subjected it to the potential for prosecution. Preterm had waived its opposition to summary judgment on the Parenting and Pregnancy Program Provision because it had never received funding from that program. 

On February 6, 2018, the Ohio Supreme Court reversed the Appellate District’s decision and reinstated the judgment of the trial court. The Court found that Preterm had not demonstrated that it suffered or was threatened with a sufficiently particularized injury to warrant standing because, with regards to the Written Transfer Agreement Provision, Preterm had an agreement with a private hospital for over a decade and only speculated that the public hospital prohibition might harm it in the future. With regards to the Heartbeat and Informed Consent Provision, the Court reasoned that Preterm was not the regulated party as it did not perform abortions, and even under a organizational theory of criminal liability there was no evidence physicians would perform abortions at Preterm in violation of the duties imposed on them by statute. Therefore, Preterm was not at-risk of prosecution. Supporting the Court's reasoning was the fact that Preterm had already modified their procedures to be in compliance with the law, and therefore was unlikely to be prosecuted. 

On February 22, 2018, the Ohio Supreme COurt issued a mandate reversing the judgment of the Appellate District and reinstating the trial court’s judgment. Four days later, on February 26, the appellate and trial courts both filed the mandate.

This case is closed.