Preterm-Cleveland, Inc. v. Kasich

• Decision Date: 24 January 2018
• Docket Number: No. 2016–1252,2016–1252
• Citation: 102 N.E.3d 461,153 Ohio St.3d 157,2018 Ohio 441
• Parties: PRETERM–CLEVELAND, INC., Appellee, v. KASICH, Governor, et al., Appellants; O'Malley, Pros. Atty., Appellee.
• Court: Ohio Supreme Court

153 Ohio St.3d 157

102 N.E.3d 461

2018 Ohio 441

PRETERM–CLEVELAND, INC., Appellee,

v. KASICH, Governor, et al., Appellants;O'Malley, Pros. Atty., Appellee.

No. 2016–1252

Supreme Court of Ohio.

Submitted September 26, 2017

Decided January 24, 2018.^*

B. Jessie Hill, Cleveland; Kohrman Jackson & Krantz, L.L.P., Susan O. Scheutzow, and Justine Lara Konicki, Cleveland; American Civil Liberties Union of Ohio Foundation, Elizabeth Bonham, and Freda J. Levenson; Elise Porter, Columbus; and Roger Baldwin Foundation of ACLU, Inc., and Lorie A. Chaiten, Columbus, for appellee Preterm–Cleveland, Inc.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Stephen P. Carney, Deputy Solicitor, and Ryan L. Richardson and Tiffany L. Carwile, Assistant Attorneys General, for appellants.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Charles E. Hannan, Assistant Prosecuting Attorney, for appellee Michael C. O'Malley, Cuyahoga County Prosecuting Attorney.

O'Donnell, J.{¶ 1} The challenges originally asserted by Preterm–Cleveland, Inc., in this case concern whether 2013 Am.Sub.H.B. No. 59 (‘‘H.B. 59’’), a biennial budget bill, violates the Single Subject Clause of Article II, Section 15(D) of the Ohio Constitution because provisions enacted or amended as part of the bill are allegedly unrelated to the state budget; however, the predicate issue before us concerns whether Preterm–Cleveland, Inc., has standing to raise the alleged violations and whether it can seek severance of provisions in the bill that did not injure it.

{¶ 2} After review, we conclude that because Preterm–Cleveland, Inc., has not proven it suffered or is threatened with direct and concrete injury from the passage of the 2013 state budget bill, it lacks standing to challenge the bill as violating the Single Subject Clause of Article II, Section 15(D) of the Ohio Constitution, and therefore, Governor John R. Kasich and the other state defendants are entitled to judgment as a matter of law. Accordingly, we reverse the judgment of the appellate court and reinstate the judgment of the trial court.

{¶ 3} Governor Kasich, together with the state of Ohio, the Ohio Department of Health and its director, the Ohio Department of Job and Family Services and its director, and the State Medical Board appeal from a judgment of the Eighth District Court of Appeals that reversed a grant of summary judgment in their favor in an action by Preterm challenging certain provisions of H.B. 59 as violating the Single Subject Clause of the Ohio Constitution.

{¶ 4} Preterm, a state licensed ambulatory surgical facility that provides abortion services, filed a complaint in the Cuyahoga County Common Pleas Court against the parties who have appealed to this court and the Cuyahoga County Prosecuting Attorney asserting that provisions of H.B. 59 that it denominated as the Written Transfer Agreement Provisions ( R.C. 3702.30, 3702.302 through 3702.308, and 3727.60 ), the Heartbeat Provisions ( R.C. 2317.56, 2919.19 through 2919.193, and 4731.22 ), and the Parenting and Pregnancy Provisions ( R.C. 5101.80, 5101.801, and 5101.804 ) are unrelated to the state budget and should be declared void and unenforceable.

Written Transfer Agreement Provisions

{¶ 5} The Written Transfer Agreement Provisions require that an ambulatory surgical facility "shall 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 * * * facility is necessary," R.C. 3702.303(A), and also prohibit a "public hospital" from entering into such an agreement with a facility "in which nontherapeutic abortions are performed or induced," R.C. 3727.60(B)(1). They further require the facility to file a copy of the written transfer agreement with the director of health, R.C. 3702.303(A), update the agreement "every two years and file a copy of the updated agreement with the director," R.C. 3702.303(B), and notify the director of a modification "not later than the business day after the modification is finalized," R.C. 3702.307(A). In addition, they state that the director may not renew a facility's license unless the "most recent version of the updated written transfer agreement" on file is "satisfactory" or the director has granted a variance. R.C. 3702.302(C).

Heartbeat Provisions

{¶ 6} The Heartbeat Provisions require that "[a] person who intends to perform or induce an abortion * * * determine whether there is a detectable fetal heartbeat * * *." R.C. 2919.191(A). Unless there is a medical emergency, "no person shall perform or induce an abortion * * * prior to determining if the unborn human individual * * * has a detectable fetal heartbeat." R.C. 2919.191(B)(1). "The person who performs the examination for the presence of a fetal heartbeat shall give the pregnant woman the option to view or hear the fetal heartbeat." R.C. 2919.191(B)(2). And "[t]he person who determines the presence or absence of a fetal heartbeat shall record in the pregnant woman's medical record" the test results and other information. R.C. 2919.191(A). These provisions also impose a record keeping requirement on "[a]ny person who performs or induces an abortion" pursuant to the medical emergency exception. R.C. 2919.191(B)(1). In addition, they mandate that "[i]f a person who intends to perform or induce an abortion" has determined there is a detectable fetal heartbeat, the person generally shall not "perform or induce the abortion" until 24 hours after informing the pregnant woman in writing about the heartbeat and the statistical probability of bringing the unborn human individual to term. R.C. 2919.192(A)(1) and (2).

{¶ 7} 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. Specifically, R.C. 2919.191(E) states that "[t]he failure of a person to satisfy the requirements of this section prior to performing or inducing an abortion * * * may be the basis for either" a "civil action for compensatory and exemplary damages" or "[d]isciplinary action" by the State Medical Board. And R.C. 2919.192(E) provides that "[w]hoever violates [ R.C. 2919.192(A) ] is guilty of performing or inducing an abortion without informed consent when there is a detectable fetal heartbeat, a misdemeanor of the first degree on a first offense and a felony of the fourth degree on each subsequent offense."

Parenting and Pregnancy Provisions

{¶ 8} The Parenting and Pregnancy Provisions created the "Ohio parenting and pregnancy program to provide services for pregnant women and parents or other relatives caring for children twelve months of age or younger," R.C. 5101.804(A)(1), and they permit the Ohio Department of Job and Family Services to offer TANF (federal Temporary Assistance for Needy Families) block grant funds to certain entities "not involved in or associated with any abortion activities," R.C. 5101.804(B)(5) ; see R.C. 5101.80(A)(4)(f) ; R.C. 5101.801(B)(3).

Proceedings in the Trial and Appellate Courts

{¶ 9} All defendants moved to dismiss the complaint for lack of standing, and Preterm moved for summary judgment. The trial court denied the motions to dismiss, and the prosecutor then moved for partial summary judgment regarding Preterm's request for an injunction to prohibit enforcement of the Parenting and Pregnancy and the Written Transfer Agreement Provisions, alleging Preterm was "not subject to any threat of criminal prosecution" by the prosecutor pursuant to those provisions. The state defendants also moved for summary judgment, asserting that Preterm lacked standing, and presented evidence that Preterm had not received TANF funds before the passage of H.B. 59, that in 2005, Preterm had executed a written transfer agreement with a private hospital, University Hospitals Cleveland Medical Center (then University Hospitals of Cleveland), with an automatic annual renewal provision, and that in 2013, it had entered a new agreement with that hospital that also contains an automatic annual renewal provision.

{¶ 10} Preterm submitted an affidavit from its Director of Clinic Operations, Heather Harrington, who averred that the Written Transfer Agreement Provisions in H.B. 59 caused Preterm to suffer "new administrative burdens," limited the number of hospitals with which it could contract, and placed its license "at greater risk of loss or revocation than before." Harrington also averred that the Heartbeat Provisions caused Preterm to "amend its policies, procedures, and protocols concerning informed consent," to undertake new record keeping burdens, and to "conduct extensive research" because Preterm "fears criminal prosecution and civil liability" if it does not comply with those provisions.

{¶ 11} The trial court granted the prosecutor's unopposed motion for partial summary judgment in connection with the Parenting and Pregnancy and the Written Transfer Agreement Provisions. It also determined Preterm had no standing to challenge H.B. 59, so all defendants were entitled to judgment in their favor on the remaining disputed claims. Thus, the court denied Preterm's motion for summary judgment, granted the state defendants' motion for summary judgment, and sua sponte granted summary judgment to the prosecutor with respect to the Heartbeat Provisions.

{¶ 12} On appeal, in a split decision, the appellate court left undisturbed the grant of summary judgment to the prosecutor regarding the Parenting and Pregnancy and the Written Transfer Agreement Provisions but reversed the trial court on the standing issue and remanded the case for further proceedings, stating it was "abundantly clear and universally understood" that Preterm was "the intended target" of the provisions it challenged in H.B. 59. 2016-Ohio-4859, 68 N.E.3d 314, ¶ 23 (8th Dist.). It rejected the state's claim that the...