Ohio AG appeals decision granting clinic standing to challenge abortion restrictions

August 25, 2016 — Ohio Attorney General Mike DeWine (R) on Monday asked the state Supreme Court to review a state appeals court ruling that held a Cleveland-based abortion clinic has standing to challenge abortion restrictions included in a 2013 state budget bill (HB 59), AP/WFMJ reports.

In court documents, DeWine claims that Preterm-Cleveland lacks standing to speak in court on behalf of providers and hospitals subject to the regulations (AP/WFMJ, 8/24).

Budget details

The budget, which took effect Sept. 30, 2013, includes a provision that requires abortion clinics to secure a transfer agreement with a private hospital and prohibits them from making such arrangements with public hospitals.

The budget also requires physicians to perform an abdominal ultrasound prior to an abortion and tell the woman if a heartbeat is detectable. Physicians also must explain the likelihood that the fetus would survive if the pregnancy continues. The bill defines a fetus as "developing from the moment of conception."

In addition, the budget reprioritizes which providers may receive federal family planning money in a way that effectively cuts off $1.4 million from Planned Parenthood. Meanwhile, the budget allocates funding for antiabortion-rights crisis pregnancy centers. The legislation also allows public funding for rape crisis clinics to be suspended if they counsel on abortion.

Legal background

In 2013, the American Civil Liberties Union of Ohio filed a lawsuit against the antiabortion-rights provisions on behalf of Preterm-Cleveland. In the lawsuit, Preterm argued that the budget violates a provision of the Ohio Constitution requiring that legislation be limited to a single subject.

A trial court ruled that Preterm lacked standing to bring the case challenging the measures.

However, the 8th District Ohio Court of Appeals in July overturned the lower court decision, ruling 2-1 that Preterm has standing to proceed with its challenge (Women's Health Policy Report, 7/11). In that ruling, the court wrote, "It is abundantly clear and universally understood regardless of where the observer stands on the core issues that Preterm has been the intended target of certain regulatory provisions." It added, "To argue that the provisions exclusively target just an individual performing the actual abortion procedure and not also the clinic where the abortion services are provided is most disingenuous."

Separately, the 6th District Ohio Court of Appeals in late July upheld a ruling involving another Ohio clinic that had declared the state's transfer agreement requirements unconstitutional. DeWine has not yet decided whether to appeal that ruling.

NARAL responds

NARAL Pro-Choice Ohio criticized DeWine's decision to appeal the 8th District's ruling that Preterm has standing to sue over the restrictions. The organization noted that the public was not invited to comment on many of the budget's abortion restrictions and that blocking the lawsuit would further restrict public participation.

Kellie Copeland, executive director of NARAL Pro-Choice Ohio, said, "Medical experts and impacted Ohioans were denied a chance to testify on many of these harmful restrictions. Now, Mike DeWine wants to deny Ohioans a fair day in court." She continued, "Clearly, DeWine and [Gov. John] Kasich [R] know their restrictions, or the manner in which they enacted them, will not stand up under public scrutiny" (Higgs, Cleveland Plain Dealer, 8/24).