Can Preliminary Injunction Keeping ‘Heartbeat Act’ on Hold Be Appealed?

Preterm-Cleveland et al. v. David Yost, attorney general of Ohio, et al., Case No. 2023-0004
First District Court of Appeals (Hamilton County)

ISSUES:

• Can the state immediately appeal a preliminary injunction that stops the implementation of a state law?
• Do doctors and clinics that perform abortions have standing to challenge the Human Rights and Heartbeat Protection Act?

BACKGROUND:
In April 2019, the General Assembly passed Senate Bill 23. The legislation, named the “Human Rights and Heartbeat Protection Act,” requires a health care provider who intends to perform an abortion to determine whether the embryo or fetus has cardiac activity. If there is cardiac activity, it is illegal for a health care provider to perform or induce an abortion with the “intent of causing or abetting” the termination of the pregnancy. Abortion is allowed under the law for some medical emergencies or when a woman has certain medically diagnosed conditions.

Violating S.B. 23 is a fifth-degree felony with the possibility of up to one year in prison and a fine of $2,500. The state medical board can assess up to $20,000 for each violation of the law and limit, revoke, or suspend the physician’s license to practice medicine. Clinics can face civil lawsuits and loss of their licenses as ambulatory surgical facilities.

Before S.B. 23 took effect, several reproductive health care clinics challenged it in federal district court. In 2019, the district court preliminarily stopped the legislation from taking effect based on the U.S. Supreme Court rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

In June 2022, the U.S. Supreme Court reversed Roe and Casey in Dobbs v. Jackson Women’s Health Organization. Based on the decision, the district court dissolved the injunction, and the act took effect that month in Ohio.

Lawsuit Filed in State Court
A doctor and several clinics filed a lawsuit in Hamilton County Common Pleas Court against the Ohio attorney general, the director of the Ohio Department of Health, and the secretary and the supervising member of the State Medical Board of Ohio. The health care providers asked in part for a preliminary injunction to prevent the enforcement of S.B. 23 while the case was pending. In October 2022, the court held a hearing and issued the injunction.

The Ohio Attorney General’s Office appealed the preliminary injunction to the First District Court of Appeals. The attorney general challenged whether the health care providers were entitled to the preliminary injunction; whether they had standing, or the right, to pursue their lawsuit; and whether abortion is constitutional under the Ohio Constitution. The First District had the parties submit additional briefs on whether the state was permitted to appeal this preliminary injunction. The appeals court determined that the preliminary injunction was not a final order and could not be appealed. The court dismissed the appeal, concluding that the state must wait for a final judgment from the trial court first.

The attorney general then appealed to the Supreme Court of Ohio, which agreed to hear the issues on appealing the preliminary injunction and on standing. The Court declined to hear the constitutional claim.

State Maintains It Has No Meaningful Remedy if Appeal Can’t Be Heard Now
The state explains that a preliminary injunction is considered a “provisional remedy” made by a court. R.C. 2505.02(B)(4) allows court orders related to provisional remedies to be appealed immediately if two circumstances apply. First, the trial court must have issued a final decision about the preliminary injunction. Second, the appealing party must show it would not be “afforded a meaningful or effective remedy” if they had to wait for the court to issue a final judgment before appealing. This case turns on the second factor, the state indicates.

The state argues it will be irreparably injured if this immediate appeal isn’t permitted and it must wait for a remedy. The state maintains that it is irreparably injured when stopped by a court from putting statutes enacted by the people’s representatives into operation. This kind of court order denies the state “the ability to faithfully execute powers entrusted to it by the people,” the state’s brief argues. The only time a court can stop a statute from taking effect is when the law is unconstitutional, the state contends. However, when the state appeals a preliminary injunction blocking a law’s operation, courts must presume that the law in question is constitutional, the state argues.

The state also asserts that its role in regulating the medical profession is undermined every time a doctor performs an abortion prohibited by state law but allowed to happen because of an injunction blocking the law. In addition, because abortions are irreversible, an injunction undercuts the goal of S.B. 23 to protect unborn humans, the state’s brief argues.

Health Care Providers Argue Appeal Allowed After Lower Court Final Judgment
The health care providers in this case – Preterm-Cleveland, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Women’s Med Group Professional Corp., Northeast Ohio Women’s Center, and Dr. Sharon Liner – argue that the preliminary injunction is not a final, appealable order. The purpose of the injunction is to maintain the status quo until a court can rule on the merits of the issue, the health care providers maintain. In this case, the trial court concluded that the preliminary injunction preserved “the status quo of legal and safe abortion access that has been in place in Ohio for nearly five decades” before S.B. 23 took effect. They contend that the injunction doesn’t deprive the state of a meaningful remedy, but only delays the remedy until the court reaches a final judgment. At that point, the state could appeal the ruling, the health care providers note.

They dispute the state’s claim that a court order enjoining state laws always causes irreparable harm to the state. The argument is unfounded, would “invent additional exceptions” not found in the statute defining when immediate appeals are allowed, and also ignores precedent in Ohio, the health care providers assert in their brief.

They reject the state’s view that S.B. 23 is presumed constitutional. That makes a premature leap that the state is correct that the law is constitutional, and it’s an attempt to require the Supreme Court to improperly address the merits of the case too early, the health care providers contend.

On the state’s role in regulating the medical profession, the health care providers maintain that if the state ultimately prevails in the case, those provisions of S.B. 23 go into effect. The health care providers also disagree that the state can appeal the preliminary injunction based on its interest in stopping abortions to protect fetal life. The exception in R.C. 2505.02(B)(4) allows appeals of preliminary injunctions only when harm is suffered by the appealing party, but the state has failed to show any concrete evidence how it has been harmed, the health care providers maintain.

State Contends Health Care Providers Can’t Sue
The state maintains that the health care providers had no standing to challenge the law in court. Parties can’t challenge a law on the basis that it violates someone else’s rights, the state argues. When a party doesn’t have standing, a court cannot exercise its authority in the case. There is an exception, called “third-party standing,” allowed in narrow circumstances, the state explains. Its brief notes that third-party standing is established when the plaintiff “(i) suffers its own injury in fact, (ii) possesses a sufficiently close relationship with the person who possesses the right, and (iii) shows some hindrance that stands in the way” of the person with the right from seeking relief in the courts. Even if the health care providers can meet the first factor, they cannot establish the second or third, the state contends.

On the close relationship factor, the state argues that a woman who obtains an abortion doesn’t develop a close relationship with the doctor who performs the procedure or the clinic where the doctor works. The state also asserts that there is a conflict of interest between health care providers and their patients because, under S.B. 23, women who obtain abortions can later sue the doctors who performed them.

The state disagrees with the claim that privacy interests are a hindrance to women themselves directly suing to challenge this law. Women could sue without using their names to protect their identities, as juveniles do when they ask a court, rather than their parents, to authorize an abortion, the state contends. The state maintains in its brief that although federal courts have permitted health care providers to sue on behalf of their patients, “a principled application of third-party standing principles would have precluded standing in such cases.”

Health Care Providers Counter That Long Precedent Permits Them to Sue
The health care providers assert that the state mischaracterizes the U.S. Supreme Court decision in Dobbs by claiming that it changed federal law on third-party standing. They maintain that the Supreme Court in Dobbs ruled on the case merits, which makes clear that the abortion providers who had sued had standing in that case. Dobbs didn’t overrule the longtime doctrine on third-party standing – either generally, or when a case involves doctors and clinics that provide abortions, the health care providers argue. They also point to several Ohio courts that have ruled that doctors and facilities that perform abortions have standing to raise legal claims on behalf of their patients.

Abortion providers meet all requirements for establishing third-party standing, the health care providers contend. They note first that S.B. 23 would injure providers due to the threat of criminal and civil penalties. They maintain the second factor is met because there is a close relationship between a patient and a doctor because a women needs a physician’s help to secure an abortion safely. The health care providers note, for example, that Ohio women must go to two appointments at a facility. The first meeting involves meeting with a physician for consent, obtaining a determination whether there is cardiac activity, and receiving state-mandated information, the health care providers explain. They also disagree that there is a conflict of interest between women and their health care providers. Doctors have an ethical obligation to advocate for their patients and prioritize their medical needs, regardless of some possible future legal action, the health care providers argue.

They describe several hindrances that may keep women from filing lawsuits on their own behalf. In part, women are trying to obtain an abortion, which takes time away from family, time off of work and fear of job loss, and costs for travel out of state. These concerns are more pressing than filing a lawsuit, the health care providers maintain. They add that women also may be reluctant to testify about private medical decisions, concerned that their identity won’t be concealed even with a pseudonym, distressed by hostility toward abortion, and fearful given examples of violence at abortion clinics and toward doctors.

Additional Briefs Backing State Include Other States
An amicus curiae brief supporting the state’s position was submitted jointly by 18 other states – Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, South Carolina, South Dakota, Texas, Utah, and West Virginia. A joint amicus brief also was filed by Center for Christian Virtue, Cincinnati Right to Life, Cleveland Right to Life, Greater Columbus Right to Life, Justice Foundation, Ohio Right to Life, Right to Life Action Coalition, and Students for Life.

Briefs Supporting Health Care Providers Submitted by Medical and Social Work Groups
The American College of Obstetricians and Gynecologists, American Medical Association, and Society for Maternal-Fetal Medicine filed a joint amicus brief supporting the health care providers. The Academy of Medicine of Cleveland & Northern Ohio and the National Association of Social Workers submitted individual briefs in support of the health care providers.

County Prosecutors Won’t Argue
Prosecutor’s offices in Cuyahoga, Franklin, Hamilton, Lucas, Montgomery, and Summit counties were named in this case. Because none filed merit briefs, they will not be permitted to argue before the Court.

– Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio from the Ohio Attorney General’s Office: Benjamin Flowers, benjamin.flowers@ohioago.gov

Representing Preterm-Cleveland et al.: Beatrice Hill, bjh11@cwru.edu