Facts
On April 10, 2019 the Ohio Legislature passed Senate Bill 23, called the “Heartbeat Bill,” and Governor DeWine signed the bill into law on April 11. The bill, effectively a total ban on abortion, was scheduled to take effect on July 10, 2019. The ban criminalizes abortion after a fetal heartbeat is detectable, typically around 6 weeks of pregnancy (about 2 weeks after a missed period).
Legal Theory
The United States Supreme Court has repeatedly and unequivocally held that, under the Due Process Clause of the Fourteenth Amendment, a state may not ban abortion prior to viability of the fetus.
Status Update
On May 15, 2019 we filed our Complaint in the Southern District of Ohio, along with a Motion for TRO or PI. Plaintiffs are Preterm-Cleveland, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Dr. Sharon Liner, Capital Care Network of Toledo, and Women’s med Group Professional Corporation. Defendants are Ohio Attorney General David Yost, the State Medical Board of Ohio, Ohio Department of Health, and County Prosecutors for Franklin, Hamilton, Cuyahoga, Mahoning, Richland, Lucas, and Muskingum counties. Defendants submitted their opposition to the Motion on June 5. We filed our reply on June 19. On July 8, the Court granted our Motion for Preliminary Injunction. Defendants Ohio Department of Health, State Medical Board of Ohio, and Ohio Attorney General Dave Yost filed their Answer on August 12.
On August 20, Plaintiffs filed a Motion for Judgment on the Pleadings and Permanent Injunction. The Court granted Defendants’ request to extend their deadline to respond to that motion, and they subsequently filed their opposition brief on October 10. On October 24, we filed our Reply in Support of our Motion for Judgment on the Pleadings. We now await a ruling.
On December 20 and February 27 we filed Notices of Supplemental Authority, informing the Court of recent developments in several other “heartbeat” abortion ban cases across the country.
In light of the shortage of personal protective equipment (PPE) for healthcare workers at the beginning of the COVID-19 pandemic, the Director of the Ohio Department of Health and Governor DeWine issued an executive order on March 17, 2020 banning all “non-essential” surgeries and medical procedures during the outbreak. The State Attorney General and Department of Health construed the order to ban surgical abortions in Ohio on the ground that they are “elective” and not “time-sensitive” procedures. Because medication abortion in Ohio is, by law, available only until ten weeks LMP, the state’s threatened enforcement would effectively ban abortions after ten weeks. Additionally, it would prevent women for whom medication abortions are not medically appropriate from obtaining abortions at any time.
On March 30 we moved to file a supplemental complaint and for a temporary restraining order and preliminary injunction to prevent enforcement of the order against abortion providers. Judge Barrett immediately entered a 14-day TRO, but declined to decide on the PI without briefing. Instead of submitting briefing on the PI, Defendants immediately appealed the TRO to the 6th Circuit on April 1. We opposed and moved to dismiss on April 2, and Defendants filed their reply on April 3. On April 6, the circuit Court dismissed the appeal for lack of jurisdiction. The district court extended the TRO an additional 14 days on April 10, and the Defendants agreed to submit a brief. Briefing concluded on April 15. On April 23, Judge Barrett granted the preliminary injunction. Defendants did not appeal that order. On April 27, the shortage of PPE in Ohio had eased, and the March 17th order banning non-essential surgeries was eased to permit elective surgeries.
On March 3, the Court entered a Stay in the case pending the resolution of all appeals in Preterm v. Himes, our Down syndrome case, and Memphis Reproductive Health v. Slatery, a Down syndrome case out of Tennessee.
On May 23, Plaintiffs filed a Motion for Scheduling Order, asking the court to establish a schedule for post-Dobbs briefing.
