Facts
On December 21, 2018 Governor DeWine signed into law Senate Bill 145. This law criminalizes the safest and most common method for second trimester abortion, dilation and extraction (D&E). The statute prohibits what it labels “dismemberment abortions” (which is not a medical term but refers to D&E abortions) of a “living unborn child.” The State construes the statute to permit a D&E abortion only if the physician first causes “fetal demise” (death by injection or umbilical transection.) To attempt fetal demise is hazardous to the patient, however, and there is no safe second trimester abortion alternative available.
Legal Theory
The procedure ban violates patients’ Fourteenth Amendment rights to liberty, privacy, and bodily integrity.
Status Update
Plaintiffs filed a complaint and motion for preliminary injunction and/or temporary restraining order on February 14, 2019, before the law was to take effect. Defendants filed opposition to the preliminary injunction motion on March 5, Plaintiffs replied on March 16, and a hearing was held on March 19. On March 21, the Court granted the TRO pending a decision on the preliminary injunction motion. After additional briefing and a three-day hearing, on April 18 the Court partially granted the PI, enjoining enforcement of the ban in most circumstances. Defendants filed their answer on April 23, 2019.
Plaintiffs filed a Motion for Reconsideration on May 9, asking for the enforcement of the law to be enjoined in its entirety or, in the alternative, that it be enjoined as to Planned Parenthood of Greater Ohio, whose physicians do not have training to perform fetal demise. Defendants opposed on May 30, and Plaintiffs replied on June 13.
On June 25, the court granted a joint request to stay discovery until after the Sixth Circuit Decision in EMW Women’s Surgical Center v. Meier, a Kentucky case regarding a similar procedure ban.
On December 3, 2019 Plaintiffs asked the Court for a ruling on their Motion for Reconsideration. On January 2, 2020, the Court denied the motion.
On June 2, 2020, a panel of the 6th Circuit Court of Appeals found the Kentucky ban on D&E to be unconstitutional in its entirety. The Kentucky Attorney General filed a petition for certiorari in the United States Supreme Court seeking review of the 6th Circuit opinion. On November 3, 2020 the parties filed a joint motion to stay the case pending final disposition of the Kentucky case, and on November 3, 2020, the district court granted the stay and also ordered the parties to meet and confer regarding the status of the case after the Kentucky case was resolved. On March 29, 2021, the Supreme Court agreed to take the Kentucky case, but only on a procedural issue that does not relate to the constitutionality of banning D&E’s. Oral argument took place in the Supreme Court on October 12 and a decision is expected by June 2022, at the end of the Court’s term.
Jennifer Branch and Alphonse Gerhardstein withdrew as counsel on January 27, 2021, as Jennifer Branch became a judge on the Hamilton County Court of Common Pleas.
Per the Court’s stay order of November 3, 2020, the parties met on June 9, 2021, to confer on the status of the case. The parties were unable to agree on a proposed schedule and on June 11 filed a joint status report requesting a status conference with the court.
