Preterm Cleveland v. Voinovich

Decision Date27 July 1993
Docket NumberNo. 92AP-791,92AP-791
Citation89 Ohio App.3d 684,627 N.E.2d 570
PartiesPRETERM CLEVELAND et al., Appellees, v. VOINOVICH, Governor, et al., Appellants. *
CourtOhio Court of Appeals

Kevin Francis O'Neill, for appellees.

Lee I. Fisher, Atty. Gen., Kathleen McDonald O'Malley, Andrew I. Sutter and Andrew S. Bergman, Asst. Attys. Gen., for appellants.

Julia A. Davis, for amici curiae, League of Women Voters of Ohio, Council of Ohio YWCAs and Women Lawyers of Franklin County.

Cathy J. Levine, for amicus curiae, NARAL Ohio Educ. Foundation.

Marcy Wilder, Dawn Johnson and Lois Eisner Murphey, for amicus curiae, National Abortion Rights Action League.

Young & Alexander Co., L.P.A., and A. Mark Segreti, Jr., Geoffrey Walker, Gregory Noble, for amicus curiae, Dayton Physicians for Life.

John G. Farnan, Clarke Forsythe, Paul Benjamin Linton and Kevin J. Todd, Robert A. Destro, for amicus curiae, Ohio's Lawyers for Life.

David M. Smolin, Daniel G. LaPorte, Nancy G. Lovin, Robert R. Melnick, for amici curiae, Ohio Right to Life Society, Inc., Women Exploited by Abortion of Ohio, and Rutherford Institute of Ohio.

Patrick J. Perotti, Ronald Suster, Brames, Bopp, Able & Oldham, James Bopp, Jr. and Richard E. Coleson, Edward F. Kasputis, for amici curiae, Rep. Jerome Luebbers, Rep. Ronald Suster, Rep. Jim Buchy and Rep. Edward Kasputis.

WHITESIDE, Judge.

Defendants, George Voinovich, in his official capacity as Governor of the state of Ohio, Lee Fisher, in his official capacity as Attorney General of the state of Ohio, and Edward G. Kilroy, M.D., in his official capacity as Director of the Ohio Department of Health, appeal from a judgment of the Franklin County Court of Common Pleas declaring R.C. 2317.56(A) through (H) and R.C. 4731.22(B)(23) as amended (collectively "H.B. No. 108") to be unconstitutional on their face under both the Ohio and the United States Constitutions and granting a permanent injunction against the defendants and state employees and agents from enforcing, implementing or executing the statutory provisions so found to be unconstitutional.

Plaintiffs, Preterm Cleveland, Lee Rubinstein, M.D., Barbara Miller and Susan Lipkin, brought this action seeking the declaratory and injunctive relief granted by the trial court. Preterm Cleveland ("Preterm") is a nonprofit corporation located in Cleveland, Ohio, and, inter alia, provides abortion services, the complaint alleging that seven thousand five hundred abortions were performed at the Preterm facility in 1990. Plaintiff Lee Rubinstein, M.D., a physician licensed to practice medicine in the state of Ohio and an obstetrician/gynecologist providing abortion services since 1978, is employed as a private contractor at Preterm and also practices at other hospitals. Plaintiff Barbara Miller is a medical counselor at Preterm. Plaintiff Susan Lipkin is the counseling director at Preterm. No issue has been raised as to the standing of the plaintiffs to maintain this action.

In support of their appeal, defendants raise two assignments of error, as follows:

Since the trial court decision and judgment, during the pendency of the appeal in this court, the United States Supreme Court decided the case of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 ("Planned Parenthood" ), 1 finding constitutional a Pennsylvania statute very similar to the Ohio statute under attack herein. As a result of Planned Parenthood, plaintiffs concede that the defendants' first assignment of error is well taken with respect to plaintiffs' liberty, privacy and speech claims under the United States Constitution but contend that plaintiffs' claim remains viable under the United States Constitution to the extent it is predicated upon the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Accordingly, we will first consider the primary issue herein, whether the challenged statutes violate any provision of the Ohio Constitution. The trial court found that the challenged statutes violate Section 1, Section 2, Section 7 and Section 11, Article I, Ohio Constitution.

Much of the brief of plaintiffs as appellees herein is devoted to arguing the obvious, namely, that the Ohio Constitution can confer greater rights upon individuals (or greater restrictions upon the legislative power of the General Assembly) than are imposed by the United States Constitution. Plaintiffs suggest that the Ohio Supreme Court recognized this principle for the first time in State v. Brown (1992), 63 Ohio St.3d 349, 588 N.E.2d 113. As defendants point out, this is not a novel proposition. The amicus brief filed in support of plaintiffs by the League of Ohio Voters of Ohio et al. also points out that the Supreme Court has long recognized the obvious conclusion that the Ohio Constitution can confer greater rights and cites the 1941 decision in Direct Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540, 21 O.O. 422, 38 N.E.2d 70. To the same effect, see, for example, State v. Smith (1931), 123 Ohio St. 237, 174 N.E. 768; State v. Mapp (1960), 170 Ohio St. 427, 11 O.O.2d 169, 166 N.E.2d 387; 2 State ex rel. The Repository v. Unger (1986), 28 Ohio St.3d 418, 28 OBR 472, 504 N.E.2d 37; and Bd. of Edn. v. Walter (1979), 58 Ohio St.2d 368, 12 O.O.3d 327, 390 N.E.2d 813.

However, there has been little occasion for the Ohio courts to apply Ohio constitutional provisions, rather than parallel federal constitutional provisions, since in most instances the federal constitution has been construed to impose either the same restrictions or greater restrictions upon state action than does the Ohio Constitution. It is only in those instances where the Ohio Constitution imposes greater restrictions upon state action than are imposed upon the states by the federal constitution that it is necessary to examine the Ohio Constitution and to apply its provisions even though the federal constitution may not restrict the state action involved.

Looking at the constitutional provisions from the individual, rather than state, perspective, it is only where the Ohio Constitution grants greater rights to the individual than are granted by the United States Constitution that the Ohio constitutional provisions need be separately examined. This is true because the states cannot restrict individual rights afforded by the United States Constitution in a manner not permitted by that Constitution.

Plaintiffs first rely upon Section 1, Article I, Ohio Constitution, which provides as follows:

"All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety." 3

It has long been recognized in Ohio that this constitutional provision grants extensive rights to the individual, it being expressly held in paragraph one of the syllabus of Palmer & Crawford v. Tingle (1896), 55 Ohio St. 423, 45 N.E. 313, that:

"The inalienable right of enjoying liberty and acquiring property, guaranteed by the first section of the bill of rights of the constitution, embraces the right to be free in the enjoyment of our faculties, subject only to such restraints as are necessary for the common welfare."

In that case, the Supreme Court held that the right to contract "can be restrained by the general assembly only so far as such restraint is for the common welfare and equal protection and benefit of the people." Id. at 441, 45 N.E. at 315.

Section 1, Article I, Ohio Constitution, together with Section 2, Article I, Ohio Constitution (together originally contained in Section 1, Article VIII of the 1802 Ohio Constitution), make it quite clear that, under the Ohio Constitution's Bill of Rights, every person has inalienable rights under natural law which cannot be unduly restricted by government, which is formed for the purpose of securing and protecting those rights, and that all governmental power depends upon the consent of the people. Thus, the Ohio constitutional provision is broader in that it appears to recognize so-called "natural law," which is not expressly recognized by the Bill of Rights or any other provision of the United States Constitution, although it is recognized in the Declaration of Independence. 4 In that sense, the Ohio Constitution confers greater rights than are conferred by the United States Constitution, although that Constitution has been construed very broadly so as to maximize the nature of the individual rights guaranteed by it. This is explained in part in Palmer & Crawford, supra, 55 Ohio St. at 441, 45 N.E. at 314, as follows:

"The word 'liberty,' as used in the first section of the Bill of Rights does not mean a mere freedom from physical restraint or state of slavery, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare."

In general, this provision guaranteeing the enjoyment of life and liberty confers upon the individual the right to do whatever he or she wishes to do so long as there is no valid law proscribing such conduct and so long as the conduct does not infringe upon rights of others recognized by the common law. It...

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