Facts
Ohio law requires that all surgical abortions must be performed in ambulatory surgical facilities that maintain a written transfer agreement with a local hospital. In its 2013 biennial budget bill, H.B. 59, Ohio tightened these restrictions by preventing abortion clinics from obtaining the necessary transfer agreement from public hospitals and by prescribing difficult requirements for abortion centers that seek a variance of the written transfer agreement requirement. In its 2015 biennial budget bill, H.B. 64, Ohio added additional, and even more onerous, provisions: a facility’s license would be automatically suspended if the Ohio Department of Health either denies – or simply fails to act on – a variance application within 60 days. The automatic suspension provision would have taken effect on September 29, 2015 and would have put facilities at risk of being forced to shut down nearly immediately with no opportunity for a hearing.
Legal Theory
The provisions of H.B. 59 and H.B. 64 in question violate women’s rights to liberty and privacy under the Fourteenth Amendment because they impose an undue burden on women’s right to terminate their pregnancies, and they violate the right to due process because they endow private parties with standardless, unreviewable authority. Further, these provisions violate abortion clinics’ right to equal protection by treating them differently from other similarly situated parties, and they violate clinics’ due process rights by denying them procedural protections. Finally, these provisions violate the One-Subject Rule under the Ohio Constitution, which prohibits logrolling, or the practice of injecting unrelated provisions into a single bill.
Status Update
We filed our Complaint and Motion for Preliminary Injunction on September 1, 2015 in the United States District Court for the Southern District of Ohio. Plaintiffs are Planned Parenthood Southwest Ohio Region (“PPSWO”) and Women’s Med Group Professional Corporation. We serve in an of-counsel capacity for Women’s Med Group. The Plaintiff organizations operate the last two remaining ambulatory surgical facilities providing abortions in Southwest Ohio. Original Defendants were now-ex-Ohio Department of Health Director Richard Hodges in his official capacity, plus the University of Cincinnati Medical Center (“UCMC”), and UC Health. The only current remaining Defendant is the Director of ODH (see below). Our Complaint seeks a declaratory judgment that the provisions of H.B. 59 and H.B. 64 in question are facially unconstitutional as applied to our plaintiffs, and seeks a permanent injunction preventing Defendant Hodges from enforcing these provisions.
Our Motion for Preliminary Injunction sought to prevent Defendant Hodges from suspending the plaintiff facilities’ licenses when the relevant provisions of H.B. 64 were to have gone into effect on September 29, 2015. On September 30, 2015, the Court issued a Temporary Restraining Order preventing the state from closing PPSWO’s facility until October 13. On October 13, 2015, our Motion for Preliminary Injunction was granted, preventing the Ohio Department of Health from enforcing the provisions of H.B. 64 in question and from suspending PPSWO’s license.
After a series of briefings beginning November 2, 2015, and an amended complaint to provide additional factual support for our claims and clarify the relief requested, on September 21, 2016 the judge dismissed the claims again UCMC and UC Health. We then filed our amended complaint on October 7, and remaining Defendant Hodges filed his answer on October 17.
We had begun discovery under a schedule that would have culminated in a bench trial starting on December 1, 2017. On May 17, 2017, however, Defendant filed a motion to stay discovery and suspend the case schedule pending the Ohio Supreme Court’s decision in Capital Care Network of Toledo v. State of Ohio Department of Health, an appeal of a 2016 decision blocking the State from closing Toledo’s last abortion clinic because the clinic lacked a written transfer agreement. On June 6, the Court held a status conference. On June 20, the court entered an order vacating the December 1 trial date. However the court did not suspend the discovery requests that were then pending, and its order permitted the parties to continue conducting limited discovery, including depositions, by agreement.
On February 6, 2018, the Ohio Supreme Court issued a decision in Capital Care Network, ruling that the Ohio Department of Health was within its rights to revoke Capital Care’s license because the clinic lacked a written transfer agreement. (Capital Care subsequently entered into a written transfer agreement, approximately one week later, with ProMedica Hospital of Toledo to provide emergency medical care. This prevented Capital Care, for the time being, from having to close.) Subsequently, we proceeded in discovery by taking and defending depositions, seeking and producing documents, and engaging in several discovery disputes by motion.
As a result of the ongoing discovery disputes, the Court has repeatedly delayed the case schedule by minute order and through informal status conferences. The most recent status conference took place on February 3, 2020. On June 24, 2019, WMCD contracted with an additional backup physician. On September 9, we filed a motion requesting leave to file a brief in excess of 20 pages, as well as a request to file documents under seal in anticipation of needing to file a Motion for Temporary Restraining Order. On September 13 the court granted our request to file documents under seal.
On October 29, 2019, the Ohio Supreme Court refused to hear WMCD’s state-court appeal of its former variance application. ODH ultimately denied WMCD’s most recent variance application, instead directing the clinic to apply for a new license. ODH’s approval of the new license application was contingent on an inspection it performed on November 4. As a result, WMCD was temporarily unable to perform surgical abortions. We filed our Motion for TRO on October 29 along with supporting declarations and asked the Judge to rule immediately so that the clinic could resume its full range of services in the interim. The Judge did not rule on our motion for a TRO. ODH finally granted WMCD a new license on November 12. Consequently, two days later the Court denied our TRO as moot. The clinic remains fully operational.
The parties have been proceeding with discovery by taking and defending depositions, seeking and producing documents, and engaging in several discovery disputes by motion.
As a result of multiple discovery disputes, the Court has repeatedly revised the case schedule by minute order and through informal status conferences. Most recently, the parties jointly moved to extend the case schedule, moving the fact discovery cutoff to September 4, 2020, expert disclosures deadline to November 5, rebuttal expert reports to January 11, expert discovery deadline to March 25, 2021, and dispositive motion filings to May 5, 2021, with no trial date.
On November 4, 2020, before the expert disclosures deadline, the parties jointly moved to stay the calendar in this case, pending a final outcome in the similar Kentucky case, EMW Women’s Surgical Center, P.S.C. v. Friedlander, 6th Cir. No. 18-6161. (The Sixth Circuit, on October 16, 2020, reversed a district court decision that had enjoined Kentucky’s WTA law, and subsequently denied an en banc petition in that case.). In granting that motion, the court ordered the parties to meet and confer, and file a status report, after the Kentucky case was resolved.
On January 12, 2021 we filed additional appearances on behalf of Planned Parenthood Southwest Ohio Region because plaintiffs’ original lead counsel, Jennifer Branch, has been elected to the Hamilton County Court of Common Pleas. Branch and Alphonse Gerhardstein withdrew as counsel on January 27, 2021.
On June 1, 2021, the time expired for a cert petition to be filed in the Kentucky WTA case. This triggered the parties to meet and confer, which they did on June 9. Unable to agree on the schedule going forward for the case, they filed a status report with the court on June 11, requesting that the court hold a status conference to resolve disputes as to whether and to what extent the case is ready to go forward with discovery and summary judgment motions. A status conference was held by Judge Barrett on July 16, 2021 in which the parties discussed the calendar dispute. On August 5 the Court issued an amended calendar order providing that expert discovery is due April 4, 2022, rebuttal expert due by February 2, 2022, initial disclosures due by December 1, 1021, and dispositive motions due by May 31, 2022.
On August 30, 2021, ODH denied WMCD’s Variance Request and Modification, a prelude to revoking its license to operate. The denial mischaracterizes one back up doctor’s qualifications and denied another backup doctor on the grounds that he was not an OBGYN (despite this doctor being a general surgeon and the dean of a medical school, and clearly qualified to handle emergencies). We requested a hearing in response to ODH’s proposal to revoke WMCD’s license. On September 13, 2021, we submitted a new variance application on behalf of WMCD that includes further details of the doctors’ qualifications and frames the new application as a request to reconsider the variance denial, however, this variance application was denied on November 12, 2021.
On December 20, we filed a Motion to File a Third Amended Complaint with a redlined version of our Third Amended Complaint attached. This amendment would incorporate developments in ODH’s enforcement of their arbitrary and ever-changing standards against Plaintiffs since the filing of our Second Amended Complaint and delete three of our earlier claims. Defendants filed an opposition to our Motion, and we replied on January 24. The Court granted our Motion to file a Third Amended Complaint on April 21, and we filed it on April 28.
Defendants Answered on May 12. On May 10, parties requested an adjusted scheduling for summary judgment briefing, which was granted by the Court. We filed our Motion for Summary Judgment on July 29. Defendant’s Opposition and Cross-Motion was filed on August 19. We filed our Reply on September 27. Defendants received an extension and filed their Reply on October 21.
On November 8 the Court requested optional supplemental briefing on the impact of the passage of Issue 1 on this case. Both parties filed supplemental briefs on December 8. In this case, Plaintiffs pleaded only federal constitutional claims, so the new abortion-protecting clause in the Ohio constitution has no impact.
We now await a decision.
