FACTS:
In late 2021, the Ohio legislature added yet another condition to the already irrational, unnecessary, and excessive regulatory licensing scheme for ambulatory surgical centers (“ASFs”). For abortion clinics without a written transfer agreement, Ohio law requires them to contract with a minimum number of backup doctors in order to maintain their ASF license. SB 157 amends Ohio’s already unnecessarily onerous licensing scheme for procedural abortion providers by drastically limiting the pool of potential backup doctors. It requires backup doctors to certify that they “do[] not teach or provide instruction directly or indirectly, at a medical school. . . affiliated with a state university or college” and that they are “not employed by or compensated pursuant to a contract with, and do[] not provide instruction or consultation to[] a medical school . . . affiliated with a state university[.]” If clinics are unable to find backup doctors who meet these qualifications, their ASF license will be revoked and they will no longer be able to provide procedural abortion care.
Although the law does not go into effect until March 23, 2022, and the text of the law gives clinics an additional 90 days to come into compliance (until June 21, 2022), in January, 2022, ODH denied Plaintiff Women’s Med Dayton (“WMD”) its variance request solely based on its failure to comply with this new law because all of WMD’s current backup doctors work at Miami Valley Hospital, which is affiliated with the Boonshoft School of Medicine at Wright State University. In February, 2022, ODH similarly sent a letter to Plaintiff Planned Parenthood of Southwest Ohio Region (“PPSWO”) requiring it to immediately attest to its compliance with SB 157 or risk losing its variance.
LEGAL THEORY:
The provisions of SB 157 violate the procedural and substantive due process rights of Plaintiffs as guaranteed by the Ohio Constitution, because it deprives Plaintiffs of their licenses, the continued operation of their businesses, and their ability to provide constitutionally protected care to patients without sufficient justification and without a means to appeal such a decision.
By significantly burdening, delaying, or preventing entirely, patients from accessing procedural abortions, SB 157 also infringes on Plaintiffs’ patients right to previability abortion, privacy and bodily autonomy guaranteed by the Ohio Constitution, without adequate justification. Plaintiffs, as abortion providers, are also treated differently than similarly situated ASFs in an arbitrary and irrational manner without adequate justification and therefore SB 157 also denies them the right to equal protection under the Ohio constitution.
Additionally, ODH’s denial of WMD’s variance based on SB 157 months prior to its effective date, and request for attestations from PPSWO regarding SB 157 months ahead of time, constitute unlawful premature enforcement of SB 157 in violation of Plaintiffs’ procedural due process rights.
STATUS:
We filed our Complaint and a Motion for a Temporary Restraining Order followed by a Preliminary Injunction on February 25, 2022, in the Hamilton County Court of Common Pleas. Plaintiffs are Planned Parenthood Southwest Ohio Region (“PPSWO”) and Women’s Med Group Professional Corporation (“WMD”). We serve as counsel for Women’s Med Group.
The Plaintiff organizations operate the last two remaining ambulatory surgical facilities providing procedural abortions in Southwest Ohio. Defendants are the Ohio Department of Health (“ODH”) and the Director of ODH, Bruce Vanderhoff, in his official capacity.
Our Complaint seeks a declaratory judgment that the provisions of S.B. 157 are unconstitutional and seeks a temporary restraining order and a preliminary injunction restraining Defendants from enforcing S.B. 157 until 90 days after its effective date, as the statute requires, and further injunctive relief including, but not limited to, a permanent injunction restraining Defendants from enforcing S.B. 157.
By its terms, SB 157 gives ASFs that have variances 90 days after its effective date – until June 21, 2022, to come into compliance with the new requirements and to submit attestations to ODH documenting that compliance. Both Plaintiffs WMD and PPSWO are operating pursuant to a valid variance. Therefore, in the absence of Defendants’ premature enforcement of SB 157, Plaintiffs should have until June 21, 2022, to demonstrate compliance with SB 157. Because of ODH’s arbitrary decision, WMD now faces imminent risk of losing its ASF license, and PPSWO is at risk of ODH taking steps to rescind its current variance and subsequently revoke its ASF license.
On February 28, 2022, we had a case management conference (“CMC”) with the court’s clerk to discuss the logistics of a hearing on Plaintiffs’ motion for a temporary restraining order.The hearing was held on March 2, 2022. Following the hearing, the judge issued an opinion and TRO enjoining enforcement of SB 127 through March 16, 2022.
On April 8 the Court granted our Motion for Preliminary Injunction. On March 26 Defendants filed a Motion to Dismiss or, in the alternative, for Summary Judgment. Plaintiffs filed our Opposition to the Motion to Dismiss/for Summary Judgment on May 9. Defendants filed their Reply in Support on May 16. The Court denied the motion on June 13.
Plaintiffs have continued to be unable to meet the requirements of SB 157 by signing a WTA with a local hospital or find four backup doctors who meet the arbitrary requirements of SB 157. On May 25 Plaintiffs therefore filed a second Motion for Preliminary Injunction, to prevent the closure of the clinic in June and July of 2022. Defendants filed their Opposition on June 9, and we replied on June 13. A hearing on the motion was also held June 13. On June 17, the Court granted our Second Motion for Preliminary Injunction.
We filed a Motion to Stay pending the resolution of our Ohio Supreme Court case, State ex rel. Preterm, et al. v. Yost, et al. on July 19. Defendants opposed the stay on July 20 and we replied on July 28. On August 10 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 were granted.
We filed a notice to the Court that the appeal in Preterm v. Yost has been dismissed.
A status conference was held February 13. 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. Defendants filed their Answer on May 29. Parties submitted a joint scheduling proposal on June 7.
Parties are currently engaged in discovery.
