Youngstown Daily Legal News

Court rules abortion clinic's lawsuit against Ohio can move forward

ANNIE YAMSON
Special to the Legal News
Published: July 21, 2016

A sexual health care clinic’s lawsuit against Governor John Kasich and the state of Ohio will move forward due to a recent judgment from a divided 8th District Court of Appeals.

In a strongly worded opinion on behalf of the majority, Judge Tim McCormack wrote that the plaintiffs in the case found the doors of both its legislature and its courts closed to it and that “the constitutional remedies of due process were thwarted.”

The clinic, Preterm Cleveland, appealed from the judgment of the Cuyahoga County Court of Common Pleas, where the complaint it filed against the state failed to gain traction.

Preterm argued in its complaint that the 2014-2015 Ohio Budget Bill, House Bill 59, violated the one-subject rule of the state’s constitution.

Specifically, it claimed that three provisions of the bill — the “heartbeat provision,” the “written transfer agreement provision” and the “parenting and pregnancy provisions” — have no relations to appropriations and “therefore destroy the bill’s unity of purpose.”

Both Preterm and Cuyahoga county Prosecutor Timothy McGinty, along with the other state defendants, moved for summary judgment, Preterm on the grounds that HB 59 violated the one-subject rule of the Ohio Constitution, and the defendants on the grounds that Preterm lacked standing to challenge the bill.

On May 18, 2015, the trial court granted the state’s motion for summary judgment, ruling that Preterm lacked standing to challenge HB 59 and declining to review the merits of Preterm’s motion in relation to the one-subject rule.

Upon review, the 8th District court found that the Cuyahoga County court erred by granting summary judgment to the state because the clinic proved that it was a target of HB 59.

“Here, in construing the evidence most favorably for Preterm, as we are required to do upon consideration of a summary judgment motion, we find that Preterm has established standing sufficient to challenge HB 59,” McCormack wrote on behalf of the appellate panel. “It is abundantly clear that Preterm has been the intended target of certain regulatory provisions of HB 59.”

McCormack cited the heartbeat provisions of the bill specifically, stating that they regulate the nature and duration of procedures.

In opposition, the state argued that the heartbeat provisions imposed obligations only on the physicians performing abortions, not the clinic itself.

“Physicians, however, do not work alone,” McCormack wrote. “It necessarily follows that such provisions that target the person performing the abortion likewise target the clinic where the abortion is ultimately performed.”

McCormack called the idea that physicians alone are targeted by the bill “most disingenuous” and stated that “every women and man in Ohio understands that reality, basic truth.”

The court of appeals also held that Preterm demonstrated that it suffered a burden under the provisions of the bill, including changing its policies and procedures in order to avoid fines or even criminal charges threatened under HB 59.

The existence of a threat of prosecution was enough, the appellate panel held, to establish standing to challenge the bill.

McCormack went on to chide the lower court and the legislature for prematurely blocking parties from their right to speak simply because the subject matter is difficult and divisive.

“Here, appellant Preterm found the statehouse door closed to them, thereby providing no opportunity for public deliberation and debate on these provisions,” he wrote. “Now, it finds the courthouse door shut, thus denying it access to court relief.

“The right of the people to petition their governments to seek redress and to access its courts was enshrined in our state and federal constitutions,” McCormack continued. “It is precisely that which the founders of our constitution sought to protect; they clearly envisioned a scenario such as this.”

McCormack warned that domestic tranquility in the U.S. relies upon access to three branches of government and that “it is no remedy to have keys inserted and doors locked.”

“As Americans, we breathe more deeply, healthily, when we listen to each other, consider opposite points of view and then decide in the open,” the judge concluded.

The case was remanded to the lower court in order for Preterm to have its day and “space for resolution.”

Presiding Judge Eileen A. Gallagher joined McCormack to form the majority.

In her dissent, Judge Melody Stewart sided with the lower court and wrote that Preterm could not show that it was a target of HB 59 or that it suffered injury as a result of its passing.

The case is cited Preterm-Cleveland, Inc. v. Governor John R. Kasich, et al., 2016-Ohio-4859.

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