Facts
During the December 2020 lame duck session, the Ohio General Assembly passed SB27, a law that radically changes how abortion clinics must manage tissue from a surgical abortion. The law does not apply to tissue from medical abortions or to miscarriages; it singles out surgical abortions and requires tissue from those abortions to be cremated or interred.
SB27 took effect on April 6, 2021, and applies to all fetal remains, which it defines to include a “zygote, blastocyte, embryo, or fetus.” Currently, all such tissue is handled in accordance with laws regulating infectious waste, similar to other tissue removed during medical procedures.
The new law also requires that before any surgical abortion occurs, state-created forms and reports must be used to document and enable the cremation or interment of the tissue, and that the Ohio Department of Health (ODH) must adopt rules and prescribe these forms. A 30-day period of notice and opportunities for hearings and comment are required before ODH can adopt any rules. At the time this case was filed, ODH had not even begun this process. As a result, abortion providers would have lacked the state-issued forms needed to comply with SB27 when it became effective on April 6.
Status
On March 9, 2021 we filed a Complaint in the Hamilton County Court of Common Pleas on behalf of Planned Parenthood and other Ohio abortion providers. We also filed a Motion for Temporary Restraining Order and Preliminary Injunction. Defendants filed their opposition to our Motion on March 11. Our TRO was denied on March 12.
On March 18, State Defendants removed the case to federal court in the Southern District of Ohio. Defendant Zach Klein, Columbus City Attorney, filed an opposition to the removal on March 19.
Because the case was (temporarily) pending in federal court, Plaintiffs filed their Reply in support of their motion for a Preliminary Injunction in the Southern District of Ohio on March 21. After expedited briefing in federal court on the issue of the removal, the case was remanded to Hamilton County, and the federal court ordered the state to pay the plaintiffs’ attorneys’ fees incurred in opposing defendants’ inappropriate removal of the case to federal court.
On March 29, Defendants, attempting again to find a jurisdiction they considered more favorable, filed a motion to transfer venue from Hamilton County to Franklin County Court of Common Pleas. The Hamilton County court denied the transfer on April 5. Also on April 5, the Court granted the preliminary injunction, preventing enforcement of SB27 until 30 days after rules and forms have been adopted according the notice-and-comment rulemaking process. The time for the state to appeal the preliminary injunction has expired.
Defendants filed their Answer on May 11.
On October 25, 2021, ODH issued proposed rules to implement SB27. These proposed rules were adopted on December 30, 2021, and will become effective on January 9, 2022. Plaintiffs will have to come into compliance with SB27 on February 8, 2022.
The new rules continue to pose impossible hurdles for abortion clinics. So on January 7, 2022 we filed an Amended Complaint and a Motion for a second Preliminary Injunction. Judge Hatheway entered a scheduling order on January 10. Defendants’ Response to our PI motion was filed January 19 and our Reply was filed on January 26. The hearing on the Motion for Preliminary Injunction was held at 10 AM on January 28. On January 31, the Court granted our Motion. A case management conference was held on February 15, and a litigation schedule was set by the court. On March 24 the parties proposed a Stipulated Protective Order, which was entered by the Court. The parties engaged in discovery with a completion deadline of December 9. Following the U.S. Supreme Court Dobbs decision and our filing of State ex rel. Preterm, et al. v. Yost, et al. in the Ohio Supreme Court, on June 30 we filed a Motion to Stay pending the resolution of that case. Defendants opposed and we replied on July 1. On July 8 the Court granted the stay. We filed new motions for stays while Preterm v. Yost is being litigated in Hamilton County and while appeals are pending in that case, and those stays have been granted.
On January 8, 2024, we filed a notice to the Court informing it that Preterm v. Yost had been dismissed by the Ohio Supreme Court. The Court held a status conference on February 13, 2024. The court noted plaintiffs’ plans to amend the complaint within 60 days and set another status conference for April 16, 2024.
On April 15 we filed a motion to amend the Complaint in light of the passage of Issue 1. Leave was granted and the amended complaint accepted the next day. The Court entered a briefing schedule on May 16. Defendants filed their Answer on June 12.
On August 12, Plaintiffs filed a Motion for Judgment on the Pleadings. On October 10, Defendants requested an extension to file their response, which they filed on November 12. Plaintiffs filed our Reply on December 13. We now await a decision.
