Preterm-Cleveland v. Himes

• Decision Date: 11 October 2019
• Docket Number: No. 18-3329,18-3329
• Citation: 940 F.3d 318
• Parties: PRETERM-CLEVELAND ; Planned Parenthood Southwest Ohio Region; Women’s Med Group Professional Corporation; Roslyn Kade, M.D.; Planned Parenthood of Greater Ohio, Plaintiffs-Appellees, v. Lance HIMES, Director, Ohio Department of Health; Kim G. Rothermel, Secretary, State Medical Board of Ohio ; Bruce R. Saferin, Supervising Member, State Medical Board of Ohio, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

940 F.3d 318

PRETERM-CLEVELAND ; Planned Parenthood Southwest Ohio Region; Women’s Med Group Professional Corporation; Roslyn Kade, M.D.; Planned Parenthood of Greater Ohio, Plaintiffs-Appellees,

v.Lance HIMES, Director, Ohio Department of Health; Kim G. Rothermel, Secretary, State Medical Board of Ohio ; Bruce R. Saferin, Supervising Member, State Medical Board of Ohio, Defendants-Appellants.

No. 18-3329

United States Court of Appeals, Sixth Circuit.

Argued: January 30, 2019

Decided and Filed: October 11, 2019

BERNICE BOUIE DONALD, Circuit Judge.

Before us is an appeal from the district court’s grant of a preliminary injunction against Defendants, enjoining them from implementing or enforcing Ohio law H.B. 214. As enacted, H.B. 214 prohibits an abortion provider from performing an abortion with the knowledge that the decision to abort arises from a diagnosis or indication that the unborn child has Down Syndrome

. Plaintiffs, various abortion providers, sued Defendants, the state officials responsible for implementing and enforcing Ohio law H.B. 214, alleging H.B. 214 unconstitutionally inhibits pre-viability abortions based on a woman’s reason for seeking the abortion. The district court granted the preliminary injunction after concluding that Plaintiffs had shown a likelihood of success on the merits. For the following reasons, we AFFIRM the district court.

I.

H.B. 214 was signed into law on December 22, 2017. H.B. 214 amends Section 3701.79 of the Ohio Revised Code and enacts Sections 2919.10 and 2919.101. Section 2919.10 prohibits any person from purposefully performing or inducing or attempting to perform or induce an abortion if the person has knowledge that the pregnant woman is seeking the abortion, in whole or in part, because of any of the following: (1) a test result indicating Down

Syndrome

in an unborn child; (2) a prenatal diagnosis of Down Syndrome in an unborn child; or (3) "any other reason to believe" that an unborn child has Down Syndrome. Ohio Rev. Code § 2919.10(B). Violation of Section 2919.10 constitutes a fourth-degree felony, punishable by up to 18 months in prison. Ohio Rev. Code §§ 2919.10(C) and 2929.14(A)(4). Section 2919.10 further requires the state medical board to revoke the license of a physician who violates it and makes that physician liable in a civil action for compensatory and exemplary damages. Ohio Rev. Code §§ 2919.10(D), (E).

Section 2919.101 requires that the performing physician attest in writing that he or she is not aware that fetal Down Syndrome

is a reason for the woman’s decision to terminate. Ohio Rev. Code § 2919.101(A). Additionally, Section 2919.101 requires the Ohio Department of Health to adopt rules to "assist in compliance with" Section 2919.101 within 90 days of its effective date. Ohio Rev. Code § 2919.101(B).

On February 15, 2018, Plaintiffs filed their complaint in the district court, alleging that H.B. 214 violates Plaintiffs’ patients’ rights to liberty and privacy, guaranteed by the Fourteenth Amendment, because the law prohibits pre-viability abortions based on the woman’s reason for seeking the care. The complaint sought, inter alia , declaratory judgment that the laws amended and enacted by H.B. 214 are facially unconstitutional. At the time of filing, Plaintiffs also filed a motion for preliminary injunction declaring H.B. 214 unconstitutional and enjoining all Defendants from enforcing or complying with H.B. 214. The district court granted Plaintiffs’ motion, finding that under Roe and Casey , a woman is expressly and unambiguously entitled to a pre-viability right to choose whether to terminate or continue her pregnancy.

II.

To determine whether to grant a preliminary injunction, trial courts consider and balance four factors: (1) the likelihood that the moving party will prevail on the merits; (2) whether the moving party will be irreparably harmed absent the injunction; (3) the prospect that others will be substantially harmed if the court grants the injunction; and (4) the public interest in granting the injunction. City of Pontiac Retired Emps. Ass’n v. Schimmel , 751 F.3d 427, 430 (6th Cir. 2014) (en banc). These factors are not prerequisites requiring satisfaction, but rather "interrelated considerations" that the court must balance. Concerned Pastors for Soc. Action v. Khouri , 844 F.3d 546, 548–49 (6th Cir. 2016). "When a party seeks a preliminary injunction on the basis of a potential constitutional violation, ‘the likelihood of success on the merits often will be the determinative factor.’ " Obama for Am. v. Husted , 697 F.3d 423, 436 (6th Cir. 2012) (quoting Jones v. Caruso , 569 F.3d 258, 265 (6th Cir. 2009) ).

On appeal from a grant or denial of a preliminary injunction, we review "the District Court’s legal rulings de novo ... and its ultimate conclusion [whether to issue a preliminary injunction] for abuse of discretion." Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court , 769 F.3d 447, 454 (6th Cir. 2014) (internal quotation marks omitted). While a "factual or legal error may alone be sufficient to establish that the court ‘abused its discretion’ in making its final determination ... in the absence of such an error the district judge’s weighing and balancing of the equities should be disturbed on appeal only in the rarest of cases."

NAACP v. City of Mansfield , 866 F.2d 162, 166 (6th Cir. 1989) (quoting Baja Contractors, Inc. v. City of Chicago , 830 F.2d 667, 674 (7th Cir. 1987) ).

Defendants argue that the panel should reverse the district court’s decision because the district court applied an erroneous legal standard by creating an "absolute" or "categorical" right to a pre-viability abortion. In support of their argument, Defendants point to language in Roe v. Wade where the Supreme Court expressly rejected the claim that the right to abortion is "absolute" and therefore entitles a woman to obtain an abortion "for whatever reasons she alone chooses." 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Under this reading of Roe , Defendants argue that the district court erred in treating the right to a pre-viability abortion as a "categorical" right that precludes any limitations based upon the reasons for the abortion. Instead, Defendants ask this Court to find that their alleged state interest in preventing discrimination based on a disability does not fall under Roe and Casey because in neither case did the Supreme Court consider such an interest. Defendants assert that instead, a strict scrutiny analysis should have been applied to determine whether the state’s interest in preventing discrimination against persons with Down Syndrome

outweighs a woman’s right to privacy. Defendants argue that under a strict scrutiny analysis, Plaintiffs have not shown a likelihood of success on the merits because Ohio has compelling interests in protecting those with Down Syndrome, the integrity of the medical profession, and the Down Syndrome community and its civic voice.

A.

We first address Defendants’ argument that Roe and Casey do not control here. Though the Constitution does not explicitly provide for any right of privacy, the Supreme Court has recognized that "a right of personal privacy, or a guarantee of certain areas or zones of privacy" is rooted in varying contexts under several Amendments to the Constitution. Roe , 410 U.S. at 152, 93 S.Ct. 705. This includes a woman’s decision whether to terminate her pregnancy. Id. at 153, 93 S.Ct. 705. While the Roe Court found that a woman’s decision to obtain an abortion is a fundamental right, the Court also acknowledged that "this right is not unqualified and must be considered against important state interests in regulation." Id. at 154, 93 S.Ct. 705. In Roe , the Court explained that, "a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life" that "[a]t some point in pregnancy ... become sufficiently compelling to sustain regulation of the factors that govern the abortion decision." Id. The Court then considered the interests set forth by the State and determined when these interests become sufficiently compelling:

With respect to the State’s important and legitimate interest in the health of the mother, the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester ... It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.

...

With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.

If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Id. at 163–64, 93 S.Ct. 705.

Nearly twenty years later, the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey upheld the Roe Court’s holding, confirming that: "[t]he woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade . It is a rule of law and a component of liberty we cannot renounce." 505 U.S. 833, 871, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Moreover, the Court in Casey drew the line between a woman’s privacy right and the state’s interest in the potential life of a fetus at viability, explaining that "[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion ... Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her...