Case: Preterm-Cleveland v. Yost

This case is about a near total abortion ban imposed in Ohio under 2019 Am.Sub.S.B. No.23 ("S.B. 23"), a six-week abortion ban that took effect on June 24, 2022. 

On September 2, 2022 the plaintiffs, who are reproductive health care providers in Ohio, filed this lawsuit in the Court of Common Pleas in Hamilton, Ohio before Judge Christian A. Jenkins. Plaintiffs filed suit against the Attorney General of the State of Ohio, the Director of the Ohio Department of Health, the Secretary of the State Medical Board of Ohio, the Supervising Member of the State Medical Board of Ohio, and five prosecutors of the surrounding counties. Represented by the ACLU of Ohio, the ACLU, Planned Parenthood Federation of America, and private counsel, the plaintiffs sued under the Ohio Constitution and sought injunctive relief, declaratory judgment, and attorneys' fees and costs.

Plaintiffs claimed that S.B. 23 violated the fundamental rights granted by the broad protections for individual liberty under Article I, Sections 1, 16 and 21 and the equal protection guarantee under Article I, Section 2 of the Ohio Constitution. Plaintiffs also alleged that the law was void for vagueness. 

Other Challenges

In 2019, the same plaintiffs challenged S.B. 23 in a federal district court, the Southern District of Ohio, and were granted a preliminary injunction on July 3, 2019 before S.B. 23 went into effect. This injunction remained in place until the same federal district court vacated it on June 24, 2022 after the Supreme Court's Jackson Women's Health Organization v. Dobbs decision came down. Read about the federal Ohio case here. 

In addition, plaintiffs raised a mandamus action regarding S.B. 23 directly to the Ohio Supreme Court on June 29, 2022. The Court denied an emergency stay of S.B. 23 on July 1 and granted the plaintiffs a voluntary dismissal on September 12, ten days after the case was filed. Read about the Ohio Supreme Court case here.

This Case

In this case, plaintiffs moved for a temporary restraining order followed by a preliminary injunction on the same day they filed the initial complaint. On September 9, 2022, defendants filed an opposition to plaintiffs' motion for a TRO. Defendants claimed that S.B. 23 was the status quo in Ohio and that a TRO was an inappropriate means to solve "an emergency of [the plaintiffs'] own making." Without a timing issue, defendants argued, there was no need for a TRO. Plaintiffs filed their reply in support of their motion for a temporary restraining order on September 8, 2022. 

On September 14, 2022, the Court of Common Pleas granted a TRO, enjoining enforcement of S.B. 23 for a period of 14 days. The court found that the plaintiffs were substantially likely to prevail on the merits, as there was a fundamental right to abortion under the Ohio Constitution. The court also found that S.B. 23 likely discriminated against pregnant women in violation of the Ohio Constitution's Equal Protection and Benefit Clause. Finally, the court agreed with the plaintiffs that a failure to issue the TRO would result in irreparable harm. On September 27, 2022, the court extended the TRO an additional 14 days to October 12, 2022.

On October 2, defendants filed an opposition to plaintiffs' motion for a preliminary injunction, arguing that the Ohio Constitution did not prohibit S.B. 23. Nevertheless, on October 12, the Court of Common Pleas issued the preliminary injunction, finding that the plaintiffs had sufficiently demonstrated both immediate, irreparable injury and the likelihood of success on the merits. In particular, the court found that the ban likely violated substantive due process and equal protection rights under the Ohio Constitution. Additionally, the court found that the injunction would cause no harm to third parties, as it would merely preserve the existing status quo. The court enjoined S.B. 23 in its entirety except a few select provisions that did not relate to abortion.

The same day, defendants appealed to the First District Court of Appeals of Ohio. A few months later, on December 16, the First District Court of Appeals dismissed the defendants’appeal of the preliminary injunction sua sponte for lack of jurisdiction. The Ohio Court of Appeals concluded that the preliminary injunction preserving the status quo was not a final, appealable order. 2022 WL 17744345.

On January 3, 2023, defendants appealed the appellate decision to the Ohio Supreme Court. They argued that the case raised substantial constitutional questions and was a case of great public and general interest. On March 14, 2023, the Court granted review on issues of appealability and standing, but not on the merits. However, before the court could rule,Ohioans passed Issue 1, a state constitutional amendment that established a constitutional right to "make and carry out one's own reproductive decisions," including the decision to obtain an abortion. Issue 1 was passed on November 7, 2023. In response, the Ohio Supreme Court summarily dismissed the appeal sua sponte on December 15 of that year due to a change in the law. 178 Ohio St.3d 1.

Plaintiffs then filed an amended complaint on December 14, 2023, retaining the original claims and additionally alleging that the abortion ban violated the Ohio Constitution's right to reproductive freedom, as established through the passage of Issue 1. 

On March 1, 2024, plaintiffs moved for summary judgment. The defendants did not contest that the “core” provision of S.B. 23’s abortion ban was unconstitutional under the amended Ohio Constitution, but argued that all other provisions, such as the requirement that providers check for cardiac activity before performing an abortion, or reporting requirements related to abortion, should remain in effect. On October 24, 2024, the Hamilton County Court of Common Pleas held that all provisions enacted by S.B. 23 were unconstitutional, inseverable, and unenforceable under the Ohio Constitution except certain provisions which were never enjoined and were wholly unrelated to abortion. On November 11, 2024, all defendants except the county-prosecutor defendants filed an appeal of the judgment back to the First District Court of Appeals. 

On January 7, 2026, the appellate court affirmed in part and reversed in part. The appellate court upheld the uncontested injunction prohibiting enforcement of R.C. 2919.195, the central provision of S.B. 23 that criminalized abortions, but reversed the portions of the injunction prohibiting enforcement of other provisions of the statute, called the “disputed provisions.” The appellate court held that the trial court erred by evaluating each of the disputed provisions’ potential constitutional concerns even though those concerns had not been raised or briefed. It pointed out that the trial court should have assumed the unchallenged provisions were constitutional before evaluating their severability. It also noted that, as the county-prosecutor defendants had not filed notices of appeal, the appellate court lacked jurisdiction to reverse the injunction as applied to them. It remanded the case back to the trial court to reapply the severability analysis.

On March 20, 2026, the parties moved jointly in the trial court to stay proceedings as litigation proceeded in a related case in Franklin County, also called Preterm-Cleveland v. Yost, which had been filed in March 2024 specifically to challenge certain disputed portions of S.B. 23 as codified.

As of March 30, 2026, this case is ongoing.