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Court News Ohio

Clinic Lacked Standing to Challenge Budget Bill’s Constitutionality

The Ohio Supreme Court has ruled that because Preterm-Cleveland Inc. did not prove it suffered or was threatened with a “direct and concrete injury” by provisions in the 2013 state budget bill, the clinic lacked standing to challenge the constitutionality of the budget law.

Preterm had claimed the state budget bill violated the Ohio Constitution’s “single subject” rule when regulations pertaining to abortion were added.

“Preterm has not demonstrated it has suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the public in general as a result of the enactment of H.B. 59, and therefore, it lacks standing to present a challenge to H.B. 59 on the basis of a Single Subject Clause violation or to seek severance of any part of the bill,” Justice Terrence O’Donnell wrote in the majority opinion, which was released today.

The 5-2 opinion reversed the appellate court and reinstated the judgment of the trial court in favor of the state.

Justices Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the majority opinion.

In a dissenting opinion, Chief Justice O’Connor maintained that Preterm established it would be burdened by the new requirements and is entitled to have its challenge to the constitutionality of the new laws heard in court. Justice William M. O’Neill, who resigned on Jan. 26, joined the dissent.

Clinic Seeks to Challenge Budget Bill
Preterm-Cleveland filed a complaint in Cuyahoga County Common Pleas Court against Gov. John Kasich and the state, asserting three sections of the budget bill (House Bill 59) are unrelated to the state budget and should be declared unenforceable. These provisions are generally described as the written transfer agreement requirements, the fetal heartbeat provisions, and the parenting and pregnancy program rules.

The state budget bill included R.C. 3702.303, which required an ambulatory surgical facility to have a written transfer agreement “with a local hospital that specifies an effective procedure for the safe and immediate transfer of patients from the facility to the hospital when medical care beyond the care that can be provided at the ambulatory surgical facility is necessary.” It also included R.C. 3727.60, which prohibits public hospitals from entering into written transfer agreements with facilities performing nontherapeutic abortions, or from authorizing a doctor to use the doctor’s staff privileges to support a variance application.

While existing Ohio Department of Health rules required all ambulatory surgical facilities, including abortion clinics, to have written transfer agreements, the new law specified the agreements had to be updated every two years and clinics must file additional documentation regarding the agreements with the state.

In addition, the legislature enacted R.C. 2919.191(A), which requires a “person who intends to perform or induce an abortion” to determine whether there is a detectable fetal heartbeat. If there is a detectable heartbeat, the person conducting the examination must offer the pregnant woman the option to view or hear the fetal heartbeat and record information in the pregnant woman’s medical records. The statute requires a minimum of a 24-hour waiting period before proceeding with the abortion. The heartbeat provisions also provide for either a civil action for damages or disciplinary action for a failure to comply, and make it a crime to violate their terms.

The pregnancy and parenting program permits the use of certain funds to provide services to pregnant women and relatives caring for children under 12 months old. The budget bill also enacted R.C. 5101.804(A)(1), allowing the state to award program grants only to entities “not involved in or associated with any abortion activities.”

The state filed a motion for summary judgment in the trial court, urging that Preterm lacked standing to challenge the law because it was not injured by any of the sections it challenged. The trial court agreed and granted the state’s motion, which Preterm appealed to the Eighth District Court of Appeals. In a 2-1 decision, the Eighth District reversed the trial court and ruled Preterm had a right to raise the single-subject rule violation. The state appealed that decision to the Supreme Court.

Court Examines Law’s Impact on Clinic
The Court explained the state constitution requires that a party must have standing to file a lawsuit in common pleas court. Quoting language from Ohio Trucking Assn. v. Charles (2012), the Court reiterated: “In order to have standing to attack the constitutionality of a legislative enactment, the private litigant must generally show that he or she has suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the public in general, that the law in question has caused the injury, and that the relief requested will redress the injury.”

The Court concluded that Preterm was not injured by the written transfer agreement requirement, noting that the clinic has had a written agreement with University Hospitals Cleveland Medical Center since 2005 and that Preterm only speculates on how it might be injured if University Hospitals does not update its agreement. While Preterm indicates that additional resources will be required to meet the law’s new administrative burdens, the record before the Court did not contain any evidence to establish that claim, the opinion stated.

Regarding the heartbeat detection provisions, the Court concluded Preterm has not been prosecuted “nor does it face a credible threat of direct prosecution” from the law because the statute applies to “persons who perform or induce abortions,” and not to the clinic where the procedures take place.

In addressing Preterm’s concern that it could face “organizational criminal liability” under R.C. 2901.23(A)(4), the Court pointed out that the clinic lacked standing because only a physician operating at Preterm could violate the law, and “there is no evidence physicians will perform abortions at Preterm in violation of the duties imposed on them by statute or were likely to do so in the absence of the changes Preterm undertook.”

Preterm further alleged that the heartbeat provisions required significant changes in the clinic’s policies and procedures, but the Court concluded that position was not well-taken, explaining that the law imposes duties on the person providing the examination and that the clinic did not face any threat of a civil lawsuit if that person does not comply. The opinion noted that the clinic’s lawsuit did not include any complaints filed by clinic employees or practicing physicians who potentially would face sanctions for non-compliance with the new law.

The Court also rejected Preterm’s right to challenge the pregnancy and parenting program because the clinic admitted it never participated in the program and did not intend to in the future and, therefore, had no direct and concrete injury resulting from that provision.

Preterm maintained that if it met the standing requirement for any of the three sections it claimed were unconstitutional, it had the right to challenge the entire bill.

The Court rejected that argument citing the U.S. Supreme Court’s 2008 Davis v. Fed. Election Comm. decision, which ruled that challengers must demonstrate standing for each claim they make and each form of relief they seek. 

Justice O’Donnell wrote: “Thus, a party challenging multiple provisions in an enactment of the General Assembly as violating the Single Subject Clause must prove standing as to each provision the party seeks to have severed from the enactment by demonstrating it suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the general public because of each provision.”

Dissent Asserts Clinic Proved Injury
Regarding the heartbeat provisions, Chief Justice O’Connor’s dissent noted that the majority had ignored one of Preterm’s leading arguments as to why those provisions caused it injury. Preterm had argued that before H.B. 59, it could provide its services to a patient in a single visit, but the heartbeat provisions require it to host a second appointment, and sometimes additional appointments, anytime a heartbeat is detected. The dissent stated that it was improper for the majority not to address this argument because it would be sufficient to give Preterm standing even under the majority’s view of Preterm’s other arguments.

“By requiring an additional appointment anytime a heartbeat is detected,” the dissent wrote, “the Heartbeat Provisions directly impact [numerous] aspects of Preterm’s work, requiring Preterm to use more resources to provide its services. The Heartbeat Provisions therefore have a direct effect on Preterm, not just its staff.”

As to the written transfer agreement provisions, the dissent observed that the majority held that Preterm failed to establish an injury because it did not present evidence of the economic cost of the administrative burdens imposed by the provisions. Requiring Preterm to show it had incurred expenses to establish standing contradicts many decades of case law from the U.S. Supreme Court, which has long held that an injury sufficient to give a plaintiff standing does not have to be economic in nature.

“While cost evidence may quantify the injury suffered,” the dissent stated, “it does not somehow enhance the magnitude of the injury, and it is not a necessary requirement that must be met in every case to establish standing.”

The dissent concluded that the written transfer agreement provisions had injured Preterm and were therefore sufficient to confer standing because they require Preterm to execute a new agreement every two years. Previously, Preterm had relied on an automatically renewing agreement, but the new law prohibits reliance on automatically renewing agreements.

With respect to the parenting and pregnancy provisions, the dissent noted the majority had created a new rule concerning standing to challenge multiple provisions in one-subject cases. Because the majority found that the heartbeat provisions and the written transfer agreement provisions did not cause Preterm an injury, and because Preterm acknowledged that it has not been injured by the parenting and pregnancy provisions, the dissent stated the majority should not have decided this issue. By addressing the argument, the dissent stated, the majority ignored the principle of judicial restraint, which calls for judges to decide no more than is necessary in a given case.  The dissent also wrote that the rule announced by the majority would “create more problems than it solves” because it departs from the plain text of the one-subject clause in the Ohio Constitution.

Finally, because the dissent found that Preterm has suffered an injury under the heartbeat provisions and the written transfer agreement provisions, it addressed the issue and concluded that Preterm suffered an injury sufficient to enable it to pursue its one-subject challenge on all of the abortion-related provisions at issue in this case.

2016-1252. Preterm-Cleveland, Inc. v. Kasich, Slip Opinion No. 2018-Ohio-441.

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