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 Common Pleas Court 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. 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 this case, 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 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. Plaintiffs claimed that S.B. 23 caused irreparable harms every day and without a TRO, Ohioans would continue to have their rights violated. 

On September 14, 2022, the Court of Common Pleas found for the plaintiffs and granted a TRO, enjoining enforcement of S.B. 23 for a period of 14 days. The Court concluded that it had subject-matter jurisdiction and that the plaintiffs had standing before turning to the merits. On the merits, the Court held that the plaintiffs were substantially likely to prevail as there is 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 October 2, 2022, defendants filed an opposition to plaintiffs' motion for a preliminary injunction with the underlying claim that nothing in the Ohio Constitution prohibits S.B. 23 such that the matter should be left to the state's own democratic process. But on October 12, 2022, the Court of Common Pleas disagreed, finding that the plaintiffs had sufficiently demonstrated the likelihood of success on the merits. In particular, the Court found that abortion is healthcare and by functioning as a near-total ban, S.B. 23 would impose significant harm on providers and their patients. The Court held that the ban violated substantive due process and equal protection rights under the Ohio Constitution. Therefore, Judge Jenkins concluded that it was appropriate to issue a preliminary injunction enjoining the enforcement of S.B. 23 due to the immediate and irreparable injury that would occur if S.B. 23 were in effect. The same day, on October 12, 2022, defendants filed a notice in the Court of Common Pleas of their appeal to the First District Court of Appeals of Ohio.

Then, on December 16, 2022, the First District Court of Appeals dismissed the State's appeal of the preliminary injunction. The Appeals Court concluded that it could only review final orders, not preliminary injunctions preserving the status quo. Therefore, the Appeals Court found that it lacked jurisdiction, labeled the appeal as premature, and sent the case back to the lower court to continue, and complete, proceedings in the case. 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 November 7, 2023, 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. In response, the Ohio Supreme Court summarily dismissed the appeal in December "due to a change in the law." 

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