1/18/2021

CM/ECF LIVE - U.S. District Court:OHSD
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U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:19-cv-00360-MRB

Preterm-Cleveland et al v. Ohio Attorney General et al Assigned to: Judge Michael R. Barrett related Case: 1:18-cv-00109-TSB Case in other court: Sixth Circuit Court of Appeals, 20-03365 Cause: 42:1983 Civil Rights Act

Date Filed: 05/15/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Preterm-Cleveland

represented by Brigitte Amiri American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2633 Fax: 212-549-2651 Email: bamiri@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Carrie Y. Flaxman Planned Parenthood Federation of America 1110 Vermont Ave, NW, Suite 300 Washington, DC 20005 (202) 973-4830 Fax: (202) 296-3480 Email: carrie.ﬂaxman@ppfa.org PRO HAC VICE ATTORNEY TO BE NOTICED

Elizabeth K. Watson American Civil Liberties Union Foundation 125 Broad St. 18th Floor New York, NY 10004 212-549-2633 Fax: 212-549-2651 Email: ewatson@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Freda J Levenson ACLU of OHIO 4506 Chester Avenue

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CM/ECF LIVE - U.S. District Court:OHSD
Cleveland, OH 44103 614/586-1959 Fax: 216-472-2210 Email: ﬂevenson@acluohio.org ATTORNEY TO BE NOTICED

Jennifer Lynn Branch Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202 513-621-9100 x13 Fax: 513-345-5543 Email: jbranch@gbﬁrm.com ATTORNEY TO BE NOTICED

Rachel M. Reeves American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2633 Fax: 212-549-2651 Email: rreeves@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood Southwest Ohio Region

Beatrice Jessie Hill Case Western Reserve University School of Law 11075 East Boulevard Cleveland, OH 44106 216-368-0553 Fax: 216-368-2086 Email: bjh11@cwru.edu ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein Gerhardstein & Branch Co. LPA 441 Vine Street Suite 3400 Cincinnati, OH 45202 513-621-9100 Fax: 513-345-5543 Email: agerhardstein@gbﬁrm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beatrice Jessie Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carrie Y. Flaxman

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CM/ECF LIVE - U.S. District Court:OHSD
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED

Melissa A. Cohen Planned Parenthood Federation of America 123 William St. Fl. 9 New York, NY 10038 212-261-4649 Fax: 212-247-6811 Email: melissa.cohen@ppfa.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff M.D. Sharon Liner

Richard Muniz Planned Parenthood Federation of America 1110 Vermont Ave NW Suite 300 Washington, DC 20005 202-973-4800 Fax: 202-296-3480 Email: richard.muniz@ppfa.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beatrice Jessie Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carrie Y. Flaxman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED

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Melissa A. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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Plaintiff Planned Parenthood of Greater Ohio
Plaintiff Women's Med Group Professional Corporation

CM/ECF LIVE - U.S. District Court:OHSD
Richard Muniz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beatrice Jessie Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carrie Y. Flaxman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED
Melissa A. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Muniz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beatrice Jessie Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carrie Y. Flaxman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch

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Plaintiff Capital Care Network of Toledo
Plaintiff Northeast Ohio Women's Center

CM/ECF LIVE - U.S. District Court:OHSD
(See above for address) ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beatrice Jessie Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carrie Y. Flaxman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beatrice Jessie Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carrie Y. Flaxman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Attorney General of Ohio

represented by Heather L. Buchanan Ohio Attorney General's Ofﬁce Constitutional Ofﬁces Section 30 East Broad Street, 16th Floor Columbus, OH 43215 614-466-2872 Fax: 614-728-7592

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Defendant Director Ohio Department of Health
Defendant Secretary, State Medical Board of Ohio
Defendant Supervising Member, State Medical Board

CM/ECF LIVE - U.S. District Court:OHSD
Email: heather.buchanan@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bridget C Coontz Ohio Attorney General's Ofﬁce Constitutional Ofﬁces 30 E. Broad St., 16th Floor Columbus, OH 43215 614-466-2872 Fax: 614-728-7592 Email: bridget.coontz@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
Michael Allan Walton Ofﬁce of the Ohio Attorney General 30 E. Broad Street 16th Street Columbus, OH 43215 614-466-2872 Fax: 866-239-0078 Email: michael.walton@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
represented by Bridget C Coontz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Buchanan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bridget C Coontz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Buchanan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bridget C Coontz (See above for address) LEAD ATTORNEY

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Defendant Cuyahoga County Prosecutor Defendant Hamilton County Prosecutor
Defendant Franklin County Prosecutor

CM/ECF LIVE - U.S. District Court:OHSD
ATTORNEY TO BE NOTICED
Heather L. Buchanan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Pamela J Sears Hamilton County Prosecutor Civil 230 East Ninth Street Suite 4000 Cincinnati, OH 45202 513/946-3082 Fax: 946-3018 Email: pam.sears@hcpros.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J. Barbiere Hamilton County Prosecuting Attorney's Ofﬁce 230 E. 9th Street Suite 4000 Cincinnati, OH 45202 513-946-3000 Fax: 513-946-3018 Email: jim.barbiere@hcpros.org ATTORNEY TO BE NOTICED
Michael Gerard Florez Assistant Prosecutor, Hamilton County Ohio Civil Division 230 East Ninth Street Suite 4000 Cincinnati, OH 45202 513-946-3229 Fax: 513-946-3018 Email: Michael.Florez@HCPros.org ATTORNEY TO BE NOTICED
represented by Arthur James Marziale , Jr. Franklin County Prosecuting Attorney Civil Litigation Unit 373 South High Street 13th Floor Columbus, OH 43215 614-525-3520

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Defendant Richland County Prosecutor Defendant Mahoning County Prosecutor Defendant Montgomery County Prosecutor
Defendant Lucas County Prosecutor

CM/ECF LIVE - U.S. District Court:OHSD
Fax: 614-525-6012 Email: amarziale@franklincountyohio.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ward Coker Barrentine Montgomery County Prosecutor's Ofﬁce 301 West Third Street Dayton, OH 45422 937-225-5601 Email: barrentinw@mcohio.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John A Borell , Sr Lucas County Prosecutor's Ofﬁce Lucas County Courthouse 700 Adam Street Suite 250 Toledo, OH 43624 419-213-2001 Fax: 419-213-2011 Email: JABorell@co.lucas.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin Andrew Pituch 711 Adams St. 2nd Floor Toledo, OH 43604-5644 419-213-2051 Fax: 419-213-2011 Email: kpituch@co.lucas.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Summit County Prosecutor

Amicus Joshua James Brown

represented by Joshua James Brown 1201 Dublin Road Suite 171 Columbus, OH 43215 (614) 284-4394 Fax: (614) 388-3947

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Amicus Citizens for Community Values
Amicus AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS
Amicus Ronald Hood
Amicus Candice Keller

CM/ECF LIVE - U.S. District Court:OHSD
Email: josh@joshbrownesq.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Philip D. Williamson Taft, Stettinius, & Hollister LLP 425 Walnut Street Cincinnati, OH 45202 513-381-2838 Fax: 513-381-0205 Email: pwilliamson@taftlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel R. Citak Citizens for Community Values P.O. Box 2945 Columbus, OH 43216 513-388-8297 Email: rachelcitak@ccv.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Matthew D Besser Bolek Besser Glesius LLC 5885 Landerbrook Drive Suite 302 Cleveland, OH 44124 216-464-3004 Fax: 866-542-0743 Email: mbesser@bolekbesser.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas W Condit PO Box 12700 Cincinnati, OH 45212 513-731-1230 Fax: 513-731-7230 Email: twcondit@fuse.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas W Condit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Date Filed

# Docket Text

CM/ECF LIVE - U.S. District Court:OHSD

05/15/2019

1 COMPLAINT against All Defendants ( Filing fee $ 400 paid - receipt number: 06486925711), ﬁled by Planned Parenthood Southwest Ohio Region, Preterm-Cleveland, Capital Care Network of Toledo, Sharon Liner, Planned Parenthood of Greater Ohio, Women's Med Group Professional Corporation. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet, # 2 Exhibit Exhibit A - S.B. 23) (Hill, Beatrice) (Entered: 05/15/2019)

05/15/2019

2 MOTION for Preliminary Injunction and/or Temporary Restraining Order by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Attachments: # 1 Text of Proposed Order Proposed Order for Temporary Restraining Order, # 2 Text of Proposed Order Proposed Order for Preliminary Injuction) (Hill, Beatrice). Added MOTION for Temporary Restraining Order on 5/15/2019 (sct). (Entered: 05/15/2019)

05/15/2019

3 Corporate Disclosure Statement by Plaintiff Preterm-Cleveland. (Hill, Beatrice) (Entered: 05/15/2019)

05/15/2019

4 NOTICE of Appearance by Beatrice Jessie Hill for Plaintiff Preterm-Cleveland (Hill, Beatrice) (Entered: 05/15/2019)

05/15/2019

5 NOTICE of Appearance by Freda J Levenson for Plaintiff Preterm-Cleveland (Levenson, Freda) (Entered: 05/15/2019)

05/15/2019

6 NOTICE of Appearance by Jennifer Lynn Branch for Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Women's Med Group Professional Corporation (Branch, Jennifer) (Entered: 05/15/2019)

05/15/2019

7 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $400 paid, receipt number 0648-6925980) of Melissa Cohen and Richard Muniz by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Women's Med Group Professional Corporation. (Attachments: # 1 Exhibit Melissa Cohen Certiﬁcate of Good Standing, # 2 Exhibit Richard Muniz Certiﬁcate of Good Standing) (Branch, Jennifer) (Entered: 05/15/2019)

05/15/2019

If this case is referred, it will be to Magistrate Judge Karen L. Litkovitz. (jlw) (Entered: 05/15/2019)

05/16/2019

9 NOTICE of Appearance by Heather L. Buchanan for Defendant Attorney General of Ohio (Buchanan, Heather) (Entered: 05/16/2019)

05/20/2019

Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 5/20/2019; Jennifer Branch, Beatrice Hill, Freda Levenson and Melissa Cohen appeared for Plaintiff; Elizabeth Watson appeared for Plf Preterm-Cleveland; Heather Buchanan and Bridgette Coontz appeared for Dft Ohio Attorney General; case to proceed with brieﬁng re 2 MOTION for Preliminary Injunction; Order to follow. (ba) Modiﬁed on 5/22/2019 (ba) to correct the entry regarding appearance. A NEF will be regenerated. Modiﬁed on 6/5/2019 (ba) to edit text to correct attorney appearance. (Entered: 05/20/2019)

05/24/2019 10 RELATED CASE MEMORANDUM ORDER: The Judges agree that this case and case number 1:18cv109 are related, the subject case nevertheless will remain with the Judge to who it was assigned. Signed by Judge Michael R. Barrett and Judge Timothy S. Black on 5/17/19. (ba) (Entered: 05/24/2019)

05/29/2019

11 NOTICE of Appearance by Ward Coker Barrentine for Defendant Montgomery County

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05/31/2019

CM/ECF LIVE - U.S. District Court:OHSD
Prosecutor (Barrentine, Ward) (Entered: 05/29/2019)
12 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $600 paid, receipt number 0648-6947719) of Elizabeth Watson, Rachel Reeves, Brigitte Amiri by Plaintiff Preterm-Cleveland. (Attachments: # 1 Exhibit Reeves Certiﬁcate of Good Standing, # 2 Exhibit Watson Certiﬁcate of Good Standing, # 3 Exhibit Amiri Certiﬁcate of Good Standing) (Levenson, Freda) (Entered: 05/31/2019)

06/02/2019 13 NOTICE of Appearance by John A Borell, Sr and Kevin A Pituch for Defendant Lucas County Prosecutor (Borell, John) Modiﬁed on 6/3/2019 (jlw). (Entered: 06/02/2019)

06/04/2019

14 ORDER granting 7 Motion for Leave to Appear Pro Hac Vice of Melissa Cohen and Richard Muniz for Plaintiffs Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio. Signed by Judge Michael R. Barrett on 6/4/19. (ba) (Entered: 06/04/2019)

06/04/2019

15 ORDER granting 12 Motion for Leave to Appear Pro Hac Vice of Elizabeth Watson, Rachel Reeves and Brigitte Amiri for Plaintiff Preterm-Cleveland. Signed by Judge Michael R. Barrett on 6/4/19. (ba) (Entered: 06/04/2019)

06/05/2019

16 NOTICE of Appearance by Bridget C Coontz for Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board (Coontz, Bridget) (Entered: 06/05/2019)

06/05/2019 06/11/2019

17 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction and/or Temporary Restraining Order MOTION for Temporary Restraining Order ﬁled by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Attachments: # 1 Exhibit A SB 23 Bill Analysis, # 2 Exhibit B SB 23 Sponsor Testimony, # 3 Exhibit C SB 23 Proponent Testimony-Dennis Sullivan MD, # 4 Exhibit D SB 23 Testimony of K. Aultman, MD, # 5 Exhibit E SB 23 Announcement of Committee Meeting, # 6 Exhibit F SB 23 Proponent Testimony-David Forte) (Buchanan, Heather) (Entered: 06/05/2019)
18 NOTICE of Appearance by Arthur James Marziale, Jr for Defendant Franklin County Prosecutor (Marziale, Arthur) (Entered: 06/11/2019)

06/12/2019

19 NOTICE of Appearance by Pamela J Sears for Defendant Hamilton County Prosecutor (Sears, Pamela) (Entered: 06/12/2019)

06/12/2019

20 NOTICE of Appearance by Michael Gerard Florez for Defendant Hamilton County Prosecutor (Florez, Michael) (Entered: 06/12/2019)

06/13/2019 21 NOTICE by Defendants Cuyahoga County Prosecutor, Franklin County Prosecutor, Hamilton County Prosecutor, Lucas County Prosecutor, Mahoning County Prosecutor, Montgomery County Prosecutor, Richland County Prosecutor Notice to Court Regarding Defense Provided By County Prosecutor Defendants (Sears, Pamela) (Entered: 06/13/2019)

06/13/2019 22 NOTICE of Appearance by James J. Barbiere for Defendant Hamilton County Prosecutor (Barbiere, James) (Entered: 06/13/2019)

06/19/2019 06/19/2019

23 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction and/or Temporary Restraining Order MOTION for Temporary Restraining Order ﬁled by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Hill, Beatrice) (Entered: 06/19/2019)
24 NOTICE by Defendant Attorney General of Ohio re 21 Notice (Other), Notice of

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06/25/2019 06/25/2019 06/25/2019 06/25/2019 07/03/2019 08/12/2019 08/20/2019
08/21/2019

CM/ECF LIVE - U.S. District Court:OHSD
Defendant Ohio Attorney General Dave Yost Regarding County Prosecutors Notice (Buchanan, Heather) (Entered: 06/19/2019)
25 WAIVER OF SERVICE Returned Executed. Waiver sent to Attorney General of Ohio on 6/11/2019, answer due 8/12/2019. (Hill, Beatrice) (Entered: 06/25/2019)
26 WAIVER OF SERVICE Returned Executed. Waiver sent to Director Ohio Department of Health on 6/11/2019, answer due 8/12/2019. (Hill, Beatrice) (Entered: 06/25/2019)
27 WAIVER OF SERVICE Returned Executed. Waiver sent to Secretary, State Medical Board of Ohio on 6/11/2019, answer due 8/12/2019. (Hill, Beatrice) (Entered: 06/25/2019)
28 WAIVER OF SERVICE Returned Executed. Waiver sent to Supervising Member, State Medical Board on 6/11/2019, answer due 8/12/2019. (Hill, Beatrice) (Entered: 06/25/2019)
29 ORDER granting 2 Motion for Preliminary Injunction; bond waived. Signed by Judge Michael R. Barrett on 7/3/19. (ba) (Entered: 07/03/2019)
30 ANSWER to 1 Complaint, ﬁled by Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Coontz, Bridget) (Entered: 08/12/2019)
31 MOTION for Judgment on the Pleadings by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Hill, Beatrice) (Entered: 08/20/2019)
NOTICE of Deadline: Rule 26(f) Report due by 9/11/2019.

Please be aware that the Court has revised its Rule 26(f) report and joint ﬁnal pretrial order forms as well as its trial procedures; visit www.ohsd.uscourts.gov/FPbarrett to obtain copies of those required forms; (ba) (Entered: 08/21/2019)

09/05/2019

32 MOTION for Extension of Time to File Response/Reply as to 31 MOTION for Judgment on the Pleadings New date requested 10/10/2019. by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion for Extension of Time to Respond to MJP) (Buchanan, Heather) (Entered: 09/05/2019)

09/10/2019

33 Joint MOTION TO EXTEND TIME TO FILE RULE 26(F) REPORT by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Hill, Beatrice) (Entered: 09/10/2019)

09/10/2019

34 ORDER granting 32 Motion for Extension of Time to File Response/Reply re 31 MOTION for Judgment on the Pleadings; Responses due by 10/10/2019. Signed by Judge Michael R. Barrett on 9/9/19. (ba) (Entered: 09/10/2019)

09/11/2019 10/10/2019

Notation order signed by Judge Michael R. Barrett on 9/11/19: The Parties jointly move for an extension of time to ﬁle their Civil Rule 26(f) Report and, for good cause shown, the Parties 33 Motion is GRANTED. The Parties shall have up to and including fourteen (14) days after the Court rules on Plaintiffs 31 Motion for Judgment on the Pleadings to ﬁle their Civil Rule 26(f) Report. (ba) (Entered: 09/11/2019)
35 RESPONSE in Opposition re 31 MOTION for Judgment on the Pleadings ﬁled by

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10/24/2019 12/20/2019 02/27/2020 03/30/2020 03/30/2020 03/30/2020 03/30/2020

CM/ECF LIVE - U.S. District Court:OHSD
Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Attachments: # 1 Exhibit A SB 23 Bill Analysis, # 2 Exhibit B SB 23 Sponsor Testimony, # 3 Exhibit C SB 23 Proponent Testimony-Dennis Sullivan MD, # 4 Exhibit D SB 23 Testimony of K. Aultman, MD, # 5 Exhibit E SB 23 Announcement of Committee Meeting, # 6 Exhibit F SB 23 Proponent Testimony-David Forte) (Coontz, Bridget) (Entered: 10/10/2019)
36 REPLY to Response to Motion re 31 MOTION for Judgment on the Pleadings ﬁled by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Attachments: # 1 Exhibit Exhibit A Fetal Development and Family Planning, # 2 Exhibit Exhibit B - Induced Abortions in Ohio) (Hill, Beatrice) (Entered: 10/24/2019)
37 NOTICE by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, PretermCleveland, Women's Med Group Professional Corporation Notice of Supplemental Authority (Attachments: # 1 Exhibit A - Sistersong v. Kemp Order on Motion to Limit Discovery) (Hill, Beatrice) (Entered: 12/20/2019)
38 NOTICE by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, PretermCleveland, Women's Med Group Professional Corporation Notice of Supplemental Authority (Hill, Beatrice) (Entered: 02/27/2020)
39 AMENDED COMPLAINT against All Defendants, ﬁled by Planned Parenthood Southwest Ohio Region, Preterm-Cleveland, Capital Care Network of Toledo, Sharon Liner, Planned Parenthood of Greater Ohio, Women's Med Group Professional Corporation. (Attachments: # 1 Exhibit A - Supplement to Veriﬁed Complaint with Exhibits, # 2 Exhibit B - Supplement to Veriﬁed Complaint with Tracked Changes, # 3 Text of Proposed Order Granting Plaintiffs' Expedited Motion to File Supplemental Complaint, # 4 Rule 7.1 Disclosure for NEOWC) (Hill, Beatrice) (Entered: 03/30/2020)
40 ***STRIKING per 78 Order**** MOTION for Temporary Restraining Order by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Attachments: # 1 Exhibit A Declaration of Sharon Liner, # 2 Exhibit B - Declaration of Chrisse France, # 3 Exhibit C- Declaration of Adarsh Krishen, # 4 Exhibit D- Declaration of Martin Haskell, # 5 Exhibit E- Declaration of David Burkons, # 6 Text of Proposed Order) (Hill, Beatrice) Modiﬁed on 4/24/2020 (ba) to edit text pursuant to 78 Order. (Entered: 03/30/2020)
41 MOTION to Amend/Correct Veriﬁed Complaint by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Attachments: # 1 Exhibit A - Supplement to Veriﬁed Complaint with Exhibits, # 2 Exhibit B - Supplement to Veriﬁed Complaint with Tracked Changes, # 3 Text of Proposed Order Granting Plaintiffs' Expedited Motion to File Supplemental Complaint, # 4 Rule 7.1 Disclosure for NEOWC) (Hill, Beatrice) (Entered: 03/30/2020)
42 MOTION for Temporary Restraining Order by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Attachments: # 1 Exhibit A - Declaration of Sharon Liner, # 2 Exhibit B Declaration of Chrisse France, # 3 Exhibit C - Declaration of Adarsh Krishen, # 4

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03/30/2020
03/30/2020
03/30/2020 03/31/2020 03/31/2020 03/31/2020 03/31/2020 03/31/2020
03/31/2020

CM/ECF LIVE - U.S. District Court:OHSD
Exhibit D - Declaration of Martin Haskell, # 5 Exhibit E - Declaration of David Burkons, # 6 Text of Proposed Order) (Hill, Beatrice) (Entered: 03/30/2020)
Minute Entry for proceedings held before Judge Michael R. Barrett: Rule 65.1 Conference held on 3/30/2020 re 42 MOTION for Temporary Restraining Order ﬁled by Planned Parenthood of Greater Ohio, Preterm-Cleveland, Sharon Liner, Women's Med Group Professional Corporation, Planned Parenthood Southwest Ohio Region, Capital Care Network of Toledo; Jennifer Branch, Brigitte Amiri, Bridget Coontz, Jessie Hill, Freda Levenson, Richard Muniz, Elizabeth Watson and Carrie Flaxman appeared for plaintiffs; Heather Buchanan appeared for State defendants; and Arthur Marziale appeared for Franklin County dft; Court's order to follow. (ba) (Entered: 03/30/2020)
43 ORDER granting 41 Plaintiffs' Motion to File a Supplemental Complaint; GRANTING IN PART, to the extent that it seeks a temporary restraining order, and HELD IN ABEYANCE IN PART, to the extent that it seeks a preliminary injunction re plaintiffs' 42 Motion for a Temporary Restraining Order and/or Preliminary Injunction; this Temporary Restraining Order is effective upon entry and expires fourteen (14) days thereafter unless dissolved earlier or extended by the Court; no bond is required. Signed by Judge Michael R. Barrett on 3/30/20. (ba) (Entered: 03/30/2020)
44 MOTION for Leave to File Amicus Curiae Brief by Amicus Joshua James Brown. (Attachments: # 1 Supplement Statement of Interest of the state of ALABAMA, ARKANSAS, IDAHO, INDIANA, KENTUCKY, LOUISIANA, MISSISSIPPI, MISSOURI, NEBRASKA, OKLAHOMA, SOUTH DAKOTA, TEXAS, TENNESSEE, UTAH, AND WEST VIRGINIA) (Brown, Joshua) (Entered: 03/30/2020)
NOTICE of Hearing: Please be aware that a Status Conference is set for 4/1/2020 at 12:00 PM by teleconference before Judge Michael R. Barrett; NOTE: parties shall refer to the entry on 3/30/20 for conferencing instructions (ba) (Entered: 03/31/2020)
45 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648-7403181) of Carrie Flaxman by Plaintiffs Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio. (Attachments: # 1 Exhibit Certiﬁcate of Good Standing for Carrie Flaxman) (Branch, Jennifer) (Entered: 03/31/2020)
46 NOTICE of Appearance by Michael Allan Walton for Defendant Attorney General of Ohio (Walton, Michael) (Entered: 03/31/2020)
47 NOTICE by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, PretermCleveland, Women's Med Group Professional Corporation Notice of Supplemental Authority (Attachments: # 1 Exhibit A - Texas TRO, # 2 Exhibit B - Alabama TRO) (Hill, Beatrice) (Entered: 03/31/2020)
48 SUPPLEMENT TO VERIFIED COMPLAINT AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants, ﬁled by Planned Parenthood Southwest Ohio Region, Preterm-Cleveland, Capital Care Network of Toledo, Sharon Liner, Planned Parenthood of Greater Ohio, Women's Med Group Professional Corporation, Northeast Ohio Women's Center. (Attachments: # 1 Exhibit A - SB 23, # 2 Exhibit B - Health Director's Order, # 3 Exhibit C -AG's Statement) (Hill, Beatrice) Modiﬁed docket text on 4/1/2020 (eh). (Entered: 03/31/2020)
NOTATION ORDER granting 45 Motion for Leave to Appear Pro Hac Vice of Carrie Flaxman as CO-COUNSEL is this matter only. In the event Pro Hac Vice counsel has

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not yet received a login and password from the Clerk of Courts, they should promptly comply with the Courts Electronic Filing Policies and Procedures Manual which can be found at the Courts website, www.ohsd.uscourts.gov. So Ordered. Signed by Judge Michael R. Barrett on 3/31/2020. (ss) (Entered: 03/31/2020)

04/01/2020 49 NOTICE by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, PretermCleveland, Women's Med Group Professional Corporation Amended Notice of Supplemental Authority (Attachments: # 1 Exhibit A - Texas TRO, # 2 Exhibit B Alabama TRO) (Hill, Beatrice) (Entered: 04/01/2020)

04/01/2020

Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 4/1/2020; Jennifer Branch, Alphonse Gerhardstein, Jessie Hill; Brigitte Amiri, Carrie Flaxman, Freda Levenson, Richard Muniz and Elizabeth Watson appeared for plaintiffs; Heather Buchanan and Michael Walton appeared for State dfts; and Arthur Marziale appeared for Franklin County dft; matter to proceed on an agreed upon brieﬁng schedule as to 42 MOTION for Permanent Injunction; Responses due by 4/8/2020; Replies due by 4/15/2020; parties shall apprise the Court regarding their position on oral arguments. (ba) (Entered: 04/01/2020)

04/01/2020 50 NOTICE OF INTERLOCUTORY APPEAL re 43 Order,, (Filing fee has been paid, receipt number 0648-7405682) by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Buchanan, Heather) (Entered: 04/01/2020)

04/02/2020 51 ORDER granting 44 Motion for Leave to File Amici Curiae brief; responses by the parties will be due on or before 4/8/20. Signed by Judge Michael R. Barrett on 4/1/20. (ba) (Entered: 04/02/2020)

04/02/2020 52 ORDER denying 50 Request for Stay ﬁled by Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board, Director Ohio Department of Health, Attorney General of Ohio. Signed by Judge Michael R. Barrett on 4/2/20. (ba) (Entered: 04/02/2020)

04/02/2020

53 USCA Case Number 20-3365 for 50 Notice of Interlocutory Appeal, ﬁled by Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board, Director Ohio Department of Health, Attorney General of Ohio. (pb) (Entered: 04/02/2020)

04/03/2020 54 MOTION to Clarify 43 Order,, Temporary Restraining Order by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Northeast Ohio Women's Center, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, PretermCleveland, Women's Med Group Professional Corporation. (Branch, Jennifer) (Entered: 04/03/2020)

04/03/2020

55 RESPONSE in Opposition re 54 MOTION to Clarify 43 Order,, Temporary Restraining Order and Request to Dissolve the Temporary Restraining Order issued on March 30, 2020 43 ﬁled by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Buchanan, Heather) (Entered: 04/03/2020)

04/06/2020

56 NOTICE by Defendant Attorney General of Ohio re 55 Response in Opposition to Motion, Defendants Notice of Supplemental Authority to its Response in Opposition to Plaintiffs Motion to Clarify Temporary Restraining Order and Request to Dissolve the Temporary Restraining Order (Doc. 55) (Buchanan, Heather) (Entered: 04/06/2020)

04/07/2020 57 ORDER of USCA the Providers motion to dismiss is GRANTED. The States motion for a stay is DENIED as moot as to 50 Notice of Interlocutory Appeal, ﬁled by

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04/09/2020 04/09/2020 04/09/2020 04/10/2020 04/14/2020 04/14/2020 04/14/2020 04/14/2020

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Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board, Director Ohio Department of Health, Attorney General of Ohio Note: No Mandate to issue. (pb) (Entered: 04/07/2020)
58 MOTION for Leave to File Excess Pages by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Buchanan, Heather) (Entered: 04/07/2020)
Notation Order: This matter is before the Court on the State Defendants' 58 unopposed Motion for Leave to File Memorandum In Excess of 20 Pages. For good cause shown, and the reasons stated therein, it is hereby ORDERED that Defendants' 58 Motion is GRANTED and their Response to Plaintiffs' 42 Motion for a Preliminary Injunction may not exceed forty (40) pages. Signed by Judge Michael R. Barrett on April 8, 2020. (ba) (Entered: 04/08/2020)
59 RESPONSE in Opposition re 42 MOTION for Temporary Restraining Order ﬁled by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board. (Attachments: # 1 Exhibit A, Exh. A, Director's Non-Essential Surgery Order, # 2 Exhibit B, In re Abbott, USCA, Fifth Circuit, No. 20-50264, # 3 Exhibit C, Declaration Mark Hurst, ODH Medical Director, # 4 Errata D, Declaration of Benjamin Robison, # 5 Exhibit E, Declaration of Brian Fowler, ODH Chief Data Ofﬁcer) (Buchanan, Heather) (Entered: 04/08/2020)
60 NOTICE of Appearance by Philip D. Williamson for Amicus Citizens for Community Values (Williamson, Philip) (Entered: 04/09/2020)
61 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648-7417678) of Rachel R. Citak by Amicus Citizens for Community Values. (Attachments: # 1 Afﬁdavit) (Williamson, Philip) (Entered: 04/09/2020)
62 MOTION for Leave to File Amicus Curiae Brief with Consent in Support of Defendants by Citizens for Community Values on Behalf of Named Individual Health Professionals and Medical Professional Associations by Amicus Citizens for Community Values. (Attachments: # 1 Brief of Amici Curiae) (Williamson, Philip) Modiﬁed Docket Text on 4/10/2020 (bjc). (Entered: 04/09/2020)
63 ORDER extending 43 Temporary Restraining Order; This Order is effective upon entry and expires fourteen (14) days thereafter unless dissolved earlier or extended by the Court. Signed by Judge Michael R. Barrett on 4/10/20. (ba) (Entered: 04/10/2020)
64 ORDER granting 62 Motion for Leave to File; Amici must ﬁle their brief within three (3) days of the date of this Order. Signed by Judge Michael R. Barrett on 4/14/20. (ba) (Entered: 04/14/2020)
65 NOTICE by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Northeast Ohio Women's Center, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation re 63 Order of Plaintiffs' Request for Oral Argument (Branch, Jennifer) (Entered: 04/14/2020)
66 MOTION for Leave to File Excess Pages by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Northeast Ohio Women's Center, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Branch, Jennifer) (Entered: 04/14/2020)
67 Reply re 65 Notice (Other), of Oppostion to Oral Argument by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board

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04/16/2020 04/16/2020
04/16/2020 04/17/2020 04/17/2020
04/17/2020 04/20/2020

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of Ohio, Supervising Member, State Medical Board. (Buchanan, Heather) (Entered: 04/14/2020)
Notation Order: This matter is before the Court on Plaintiffs' 66 Motion for Leave to File Memorandum In Excess of 20 Pages. For good cause shown, and the reasons stated therein, it is hereby ORDERED that Plaintiffs' 66 Motion is GRANTED and their Reply to the State Defendants' Response in Opposition to Plaintiffs' Motion for a Preliminary Injunction may not exceed thirty-ﬁve (35) pages. Signed by Judge Michael R. Barrett on April 15, 2020. (ba) (Entered: 04/15/2020)
68 REPLY to Response to Motion re 42 MOTION for Temporary Restraining Order ﬁled by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Northeast Ohio Women's Center, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation. (Attachments: # 1 Exhibit A - France Supplemental Declaration, # 2 Exhibit B - Liner Supplemental Declaration, # 3 Exhibit C - Krishen Supplemental Declaration, # 4 Exhibit D - Haskell Supplemental Declaration, # 5 Exhibit E - Burkons Supplemental Declaration, # 6 Exhibit F - Norris Declaration, # 7 Exhibit G - Keder Declaration, # 8 Exhibit H - McKinney Declaration, # 9 Text of Proposed Order) (Hill, Beatrice) (Entered: 04/15/2020)
69 BRIEF OF AMICI CURIAE re 64 Order on Motion for Leave to File by Amicus Citizens for Community Values. (Williamson, Philip) Modiﬁed on 4/17/2020 (jlw). (Entered: 04/16/2020)
70 MOTION for Leave to File MOTION OF AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, AMERICAN MEDICAL ASSOCIATION, AND OTHER NATIONWIDE ORGANIZATIONS OF MEDICAL PROFESSIONALS FOR LEAVE TO FILE BRIEF AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION by Amicus AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS. (Besser, Matthew) (Entered: 04/16/2020)
71 MOTION for Leave to Appear Pro Hac Vice (Receipt # 200COL061423) of Joseph S. St. John, Elizabeth B. Murrill by Amicus Joshua James Brown. (Attachments: # 1 Exhibit Certiﬁcate of Good Standing, St. John, Murrill) (Brown, Joshua) Modiﬁed docket on 4/23/2020 (eh). (Entered: 04/16/2020)
72 ORDER granting 70 Motion for Leave to File Amicus Curiae brief; brief is due 3 days from the date of this Order. Signed by Judge Michael R. Barrett on 4/17/20. (ba) (Entered: 04/17/2020)
Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 4/17/2020 regarding the need for oral argument; Jennifer Branch, Jessie Hill; Brigitte Amiri, Carrie Flaxman, Freda Levenson, Richard Muniz and Elizabeth Watson appeared for plaintiffs; Heather Buchanan and Michael Walton appeared for State dfts; and Arthur Marziale appeared for Franklin County dft; Joshua Brown appeared for amicus; the issue of oral argument is taken under advisement; a decision will follow either later today or Monday (4/20/20). (Court Reporter: Maryann Mafﬁa) (ba) (Entered: 04/17/2020)
73 BRIEF AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION by Amicus AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS. (Besser, Matthew) Modiﬁed to create links to motions on 4/20/2020 (eh). (Entered: 04/17/2020)
74 ORDER denying 65 Request for Oral Argument ﬁled by Planned Parenthood of

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Greater Ohio, Northeast Ohio Women's Center, Preterm-Cleveland, Sharon Liner, Women's Med Group Professional Corporation, Planned Parenthood Southwest Ohio Region, Capital Care Network of Toledo. Signed by Judge Michael R. Barrett on 4/20/20. (ba) (Entered: 04/20/2020)

04/20/2020 75

NOTICE OF SUPPLEMENTAL AUTHORITY TO THEIR RESPONSE TO PLAINTIFFS 42 MOTION FOR PRELIMINARY INJUNCTION by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board (Attachments: # 1 Exhibit 1 In re: Abbott, No 20-50296 (5th Cir. Apr.20, 2020)) (Buchanan, Heather) Modiﬁed docket text and created link to motion on 4/21/2020 (eh). (Entered: 04/20/2020)

04/21/2020

76 RESPONSE AND NOTICE OF ADDITIONAL AUTHORITY re 75 NOTICE OF SUPPLEMENTAL AUTHORITY TO THEIR RESPONSE TO PLAINTIFFS 42 MOTION FOR PRELIMINARY INJUNCTION by Plaintiffs Capital Care Network of Toledo, Sharon Liner, Northeast Ohio Women's Center, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women's Med Group Professional Corporation re 42 MOTION for Temporary Restraining Order , 75 Notice (Other), Plaintiffs' Response to Defendants' Supplemental Authority and Notice of Additional Authorities (Hill, Beatrice) Modiﬁed docket text on 4/21/2020 (eh). (Entered: 04/21/2020)

04/22/2020

77 NOTICE OF SUPPLEMENTAL AUTHORITY TO THEIR RESPONSE TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION re doc. 402 by Defendants Attorney General of Ohio, Director Ohio Department of Health, Secretary, State Medical Board of Ohio, Supervising Member, State Medical Board (Attachments: # 1 Exhibit In re Rutledge, No. 20-1791 (8th Cir. Apr. 22, 2020)) (Buchanan, Heather) Modiﬁed docket text and created link to motion on 4/23/2020 (eh). (Entered: 04/22/2020)

04/23/2020

Filing Fee Received re 71 Motion for Leave to Appear Pro Hac Vice of Joseph S. St. John and Elizabeth B. Murrill: $400. Receipt Number: 200COL061423. (ew) (Entered: 04/23/2020)

04/23/2020 78 ORDER granting 42 Motion for Preliminary Injunction; ﬁnding as moot 54 Motion to Clarify; striking 40 Motion for TRO/PI as duplicate; bond is waived. Signed by Judge Michael R. Barrett on 4/23/20. (ba) (Entered: 04/23/2020)

04/24/2020

NOTATION ORDER granting 61 Motion for Leave to Appear Pro Hac Vice of Rachel Citak as CO-COUNSEL is this matter only. In the event Pro Hac Vice counsel has not yet received a login and password from the Clerk of Courts, they should promptly comply with the Courts Electronic Filing Policies and Procedures Manual which can be found at the Courts website, www.ohsd.uscourts.gov. So Ordered. Signed by Judge Michael R. Barrett on 4/24/2020. (ss) (Entered: 04/24/2020)

05/06/2020

79 NOTICE of Appearance by Thomas W Condit for Amicus Parties Ronald Hood, Candice Keller (Condit, Thomas) (Entered: 05/06/2020)

05/06/2020

80 MOTION for Leave to File Amicus Curiae Brief by Amicus Parties Ronald Hood, Candice Keller. (Attachments: # 1 Amicus Curiae Brief) (Condit, Thomas) (Entered: 05/06/2020)

05/07/2020

81 NOTICE of Clariﬁcation re 80 MOTION for Leave to File Amicus Curiae Brief by Amicus Parties Ronald Hood, Candice Keller (Condit, Thomas) Modiﬁed to create link to motion on 5/8/2020 (eh). (Entered: 05/07/2020)

08/21/2020 82 NOTICE by Amicus Joshua James Brown re 71 MOTION for Leave to Appear Pro Hac

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CM/ECF LIVE - U.S. District Court:OHSD
Vice (FILING FEE DUE) of Joseph S. St. John, Elizabeth B. Murrill Certiﬁcate of Good Standing (Attachments: # 1 Exhibit Certiﬁcate of Good Standing) (Brown, Joshua) (Entered: 08/21/2020)
83 NOTICE of Deﬁciency re 71 MOTION for Leave to Appear Pro Hac Vice of Joseph S. St. John, Elizabeth B. Murrill. Response due by 1/4/2021. (eh) (Entered: 12/21/2020)
84 ORDER granting 80 Motion for Leave to File Amici brief within 7 days of the date of this Order. Signed by Judge Michael R. Barrett on 12/22/20. (ba) (Entered: 12/22/2020)
85 BRIEF by Amicus Parties Ronald Hood, Candice Keller. (Condit, Thomas) (Entered: 12/28/2020)
86 BRIEF by Amicus Parties Ronald Hood, Candice Keller. (Condit, Thomas) (Entered: 12/29/2020)
87 ORDER denying 71 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Michael R. Barrett on 1/5/2021. (eh) (Entered: 01/05/2021)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

PRETERM-CLEVELAND C/O B. JESSIE HILL ACLU of Ohio 4506 Chester Ave. Cleveland, OH 44103
PLANNED PARENTHOOD SOUTHWEST OHIO REGION C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
SHARON LINER, M.D. C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
PLANNED PARENTHOOD GREATER OHIO C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
WOMEN’S MED GROUP PROFESSIONAL CORPORATION C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
CAPITAL CARE NETWORK OF TOLEDO C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
Plaintiffs, vs.
DAVID YOST Attorney General of Ohio 30 E. Broad Street, 14th Floor

: Case No. : : Judge: : : : : : : VERIFIED COMPLAINT FOR : DECLARATORY AND INJUNCTIVE : RELIEF : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

Case: 1:19-cv-00360-MRB Doc #: 1 Filed: 05/15/19 Page: 2 of 23 PAGEID #: 2

Columbus, OH 43215

:

:

AMY ACTON

:

Director, Ohio Department of Health

:

246 N. High Street

:

Columbus, OH 43215

:

:

KIM G. ROTHERMEL, M.D.

:

Secretary, State Medical Board of Ohio :

30 East Broad Street, 3rd Floor

:

Columbus, OH 43215

:

:

BRUCE R. SAFERIN, D.P.M.

:

Supervising Member, State Medical

:

Board of Ohio

:

30 East Broad Street, 3rd Floor

:

Columbus, OH 43215

:

:

MICHAEL C. O’MALLEY

:

Cuyahoga County Prosecutor

:

Justice Center Bld. Floor 8th and 9th

:

1200 Ontario Street

:

Cleveland, OH 44113

:

:

JOSEPH T. DETERS

:

Hamilton County Prosecutor

:

230 E. Ninth Street, Suite 4000

:

Cincinnati, OH 45202

:

:

RONALD O’BRIEN

:

Franklin County Prosecutor

:

373 S. High Street, 14th Floor

:

Columbus, OH 43215

:

:

GARY BISHOP

:

Richland County Prosecutor

:

38 South Park Street

:

Mansfield, OH 44902

:

:

PAUL J. GAINS

:

Mahoning County Prosecutor

:

21 W. Boardman Street, 6th Floor

:

Youngstown, OH 44503

:

:

MATHIAS HECK, JR.

:

Montgomery County Prosecutor

:

2

Case: 1:19-cv-00360-MRB Doc #: 1 Filed: 05/15/19 Page: 3 of 23 PAGEID #: 3

301 W. Third St.

:

P.O. Box 972

:

Dayton, OH 45402

:

:

JULIA R. BATES

:

Lucas County Prosecutor

:

700 Adams Street, Suite 250

:

Toledo, OH 43604

:

:

:

:

Defendants.

:

:

VERIFIED COMPLAINT Plaintiffs, by and through their attorneys, bring this Complaint against the above-named Defendants, their employees, agents, and successors in office, and in support thereof state the following:
INTRODUCTION 1. This is a constitutional challenge, under 42 U.S.C. § 1983, to Senate Bill 23, 133rd Gen. Assemb. (hereinafter “the Ban”), attached as Exhibit A. 2. For over forty-six years, U.S. law has recognized the fundamental federal constitutional right to make the profoundly important and personal decision whether or not to terminate a pregnancy. The U.S. Supreme Court has repeatedly recognized that this right is central to obtaining equality and respecting the dignity, autonomy, and bodily integrity of all individuals. 3. The decision to terminate a pregnancy is informed by a combination of diverse, complex, and interrelated factors that are intimately related to the individual’s values and beliefs, culture and religion, health status and reproductive history, familial situation, and resources and

3

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economic stability. In direct conflict with Roe v. Wade, 410 U.S. 113 (1973), and more than four decades of precedent affirming Roe’s central holding, the Ban criminalizes almost all previability abortions. Specifically, the Ban makes it a crime to perform an abortion after detection of cardiac activity, which generally occurs around six weeks in pregnancy, when many women1 are unaware they are pregnant. In so doing, the Ban prohibits approximately 90% of abortions currently performed in Ohio and violates Plaintiffs’ patients’ rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.
4. The Ohio Legislature passed the Ban on April 10, 2019, and Governor DeWine signed the Ban on April 11, 2019. If the Ban takes effect as scheduled on July 10, 2019, it will instantly criminalize the performance of almost all abortions in Ohio. Governor DeWine acknowledged that the Ban is blatantly unconstitutional and has stated that the Ban is an opportunity to advocate for “reversal of existing legal precedents.”2
5. Unless this Court grants a temporary restraining order or preliminary injunction, and later a permanent injunction, Plaintiffs will be forced to turn away patients seeking abortion care. This is a direct violation of Plaintiffs’ patients’ fundamental constitutional right to decide whether to have an abortion prior to viability, and causes those patients irreparable harm.
1 Plaintiffs use “woman” or “women” in this complaint as a short-hand for people who are or may become pregnant, but note that people of all gender identities, including gender nonconforming people and transgender men, may also become pregnant and seek abortion services and would thus also suffer irreparable harm as a result of the Ban. 2 Ohio Gov. Mike DeWine Signs Ban on Abortion After 1st Heartbeat, Associated Press (Apr. 12, 2019), https://www.apnews.com/0b1deb8c1f5d41d8ab4c9e32446a55ce. Similarly, S.B. 23’s sponsor in the Senate acknowledged that, if upheld, S.B. 23 would create “a new standard” for determining an abortion restriction’s constitutionality. Talia Kaplan, Ohio “Heartbeat” Abortion Ban Passes Senate as Governor Vows to Sign It, Fox News (Mar. 14, 2019), https://www.foxnews.com/faith-values/ohio-heartbeat-abortion-ban-closer-to-becoming-law.
4

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JURISDICTION AND VENUE 6. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. 7. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court. 8. Venue is appropriate under 28 U.S.C § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occur in this judicial district.
PLAINTIFFS 9. Plaintiff Preterm-Cleveland (“Preterm”), a nonprofit corporation organized under the laws of the State of Ohio, has operated a reproductive health care clinic in Cleveland, Ohio since 1974. Preterm provides a wide range of reproductive and sexual health care services. The abortion providers at Preterm are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. Preterm sues on behalf of itself; its current and future staff, officers, and agents; and its patients. 10. Plaintiff Planned Parenthood Southwest Ohio Region (“PPSWO”) is a nonprofit corporation organized under the laws of the State of Ohio. PPSWO and its predecessor organizations have provided a broad range of high-quality reproductive health care to patients in southwest Ohio since 1929. PPSWO’s surgery center, located in Cincinnati, provides abortion services. The abortion providers at PPSWO are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. PPSWO sues on behalf of itself; its current and future staff, officers, and agents; and its patients. 11. Plaintiff Sharon Liner, M.D., is a physician licensed to practice medicine in Ohio with fifteen years of experience in women’s healthcare. Dr. Liner is PPSWO’s Medical
5

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Director, and in that role she supervises physicians providing abortions, develops PPSWO’s policies and procedures, and provides health care services including abortion. Dr. Liner has been providing abortions since 2002. She sues on her own behalf and on behalf of her patients.
12. Plaintiff Planned Parenthood of Greater Ohio (“PPGOH”) is a nonprofit corporation organized under the laws of the State of Ohio. PPGOH was formed in 2012 through a merger of several local and regional Planned Parenthood affiliates that had served patients in Ohio for decades. PPGOH serves patients in northern, eastern, and central Ohio. Four PPGOH health centers, located in East Columbus, Bedford Heights, Mansfield, and Youngstown, provide abortion services. The Mansfield and Youngstown health centers provide only medication abortion services. The abortion providers at PPGOH are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. PPGOH sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
13. Plaintiff Women’s Med Group Professional Corporation (“WMGPC”) owns and operates Women’s Med Center of Dayton (“WMCD”) in Kettering, Ohio. WMGPC and its predecessors have been providing abortions in the Dayton area since 1975. The abortion providers at WMCD are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. WMGPC sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
14. Plaintiff Capital Care Network of Toledo (“CCNT”), a corporation organized under the laws of the State of Ohio, has operated a health care clinic in Toledo, Ohio since 2007. The abortion providers at CCNT are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. CCNT sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
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Case: 1:19-cv-00360-MRB Doc #: 1 Filed: 05/15/19 Page: 7 of 23 PAGEID #: 7
15. Plaintiffs provide medication abortion, surgical abortion, or both medication and surgical abortion at and after six weeks from the first day of the patient’s last menstrual period (“LMP”). In accordance with Ohio law, no Plaintiffs provide abortion care at or after twenty weeks post-fertilization (twenty-two weeks LMP). Ohio Rev. Code § 2919.201.
DEFENDANTS 16. Defendant David Yost is the Attorney General of the State of Ohio. He is responsible for the enforcement of all laws, including the Ban. Under the Ban, he is also charged with commencing and prosecuting civil forfeiture when directed to do so by the State Medical Board. S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(B). He is sued in his official capacity. 17. Defendant Amy Acton, M.D., M.P.H., is the Director of the Ohio Department of Health (“ODH”), which is responsible for promulgating rules to assist in compliance with the Ban, including rules governing the process for determining whether a fetal heartbeat exists and rules dictating reporting requirements. She is charged with administering ODH. She is sued in her official capacity. 18. Defendant Kim G. Rothermel, M.D., is the Secretary of the State Medical Board of Ohio, which is charged with enforcing the physician licensing and civil penalties contained in the Ban. She is sued in her official capacity. 19. Defendant Bruce R. Saferin, D.P.M., is the Supervising Member of the State Medical Board of Ohio, which is charged with enforcing the physician licensing and civil penalties contained in the Ban. He is sued in his official capacity. 20. Defendant Michael C. O’Malley is the Cuyahoga County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Cuyahoga County, where Preterm’s
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clinic and PPGOH’s Bedford Heights health center are located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
21. Defendant Joseph T. Deters is the Hamilton County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Hamilton County, where PPSWO’s Cincinnati surgery center is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
22. Defendant Ronald O’Brien is the Franklin County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Franklin County, where PPGOH’s East Columbus health center is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
23. Defendant Gary Bishop is the Richland County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Richland County, where PPGOH’s Mansfield health center is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
24. Defendant Paul G. Gains is the Mahoning County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Mahoning County, where PPGOH’s Youngstown health center is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
25. Defendant Mathias H. Heck, Jr. is the Montgomery County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Montgomery County, where WMGPC’s WMCD facility is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
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26. Defendant Julia R. Bates is the Lucas County Prosecutor. She is responsible for the enforcement of all of the criminal laws in Lucas County, where CCNT’s health center is located, including the criminal provisions contained in the Ban. She is sued in her official capacity.
STATUTORY FRAMEWORK 27. If a pregnancy is in the uterus, Ohio law requires the provider who intends to perform an abortion to determine whether there is cardiac activity.3 If there is cardiac activity, the Ban makes it a crime to “caus[e] or abet[] the termination of” the pregnancy. S.B. 23 § 1, amending Ohio Rev. Code §§ 2919.192(A), 2919.192(B), 2919.195(A). 28. The Ban has only two very limited exceptions. The Ban permits abortion after cardiac activity is detected only if the abortion is necessary (1) to prevent the patient’s death, or (2) to prevent a “serious risk of the substantial and irreversible impairment of a major bodily function.” S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(B). “‘Serious risk of the substantial and irreversible impairment of a major bodily function’ means any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function.” Ohio Rev. Code § 2919.16(K). A “medically diagnosed condition that constitutes a ‘serious risk of the substantial and irreversible impairment of a major bodily function’ includes pre-eclampsia, inevitable abortion, and premature rupture of the membranes,” but “does not include a condition related to the woman’s mental health.” Id.
3 The Ban instructs the Ohio Department of Health to adopt rules “specifying the appropriate methods of performing an examination for the purpose of determining the presence of a fetal heartbeat” within 120 days of the Ban’s effective date. S.B. 23 § 1, amending Ohio Rev. Code § 2919.192.
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29. A violation of the Ban is a fifth-degree felony, punishable by up to one year in prison and a fine of $2,500. S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(A); Ohio Rev. Code §§ 2929.14(A)(5), 2929.18(A)(3)(e). In addition to criminal penalties, the state medical board may assess a forfeiture of up to $20,000 for each violation of the Ban, S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(A), and limit, revoke, or suspend a physician’s medical license based on a violation of the Ban, see Ohio Rev. Code § 4371.22(B)(10). The Plaintiff facilities could face criminal penalties and revocation of their ambulatory surgical center license for a violation of the Ban. A patient may also bring a civil action against a provider who violates the Ban and recover damages in the amount of $10,000 or more. S.B. 23 § 1, amending Ohio Rev. Code § 2919.199(B)(1).
FACTUAL ALLEGATIONS 30. In a normally developing embryo, cells that form the basis for development of the heart later in gestation produce activity that can be detected with ultrasound. 31. Consistent with medical practice, as well as existing law, see Ohio Rev. Code § 2919.191(A), Plaintiffs perform an ultrasound to date the pregnancy and to determine whether there is detectable fetal or embryonic cardiac activity.4 Ultrasounds can be performed either by placing a transducer on the patient’s abdomen or by inserting a probe into the patient’s vagina. Many providers, including providers at Plaintiff clinics, use vaginal ultrasound to confirm and date early pregnancy.
4 The embryonic stage of pregnancy lasts from fertilization until approximately eight to ten weeks LMP. Beginning at about eleven weeks LMP, the embryo becomes a fetus.
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32. Using vaginal ultrasound, cardiac activity is generally detectible beginning at approximately six weeks, zero days LMP.5
33. Ohio law prohibits abortion after viability, except when that abortion is necessary to preserve the pregnant woman’s life or health.6 Ohio Rev. Code § 2919.17.
34. Six weeks LMP is a pre-viability point in pregnancy. At that point, no embryo is capable of surviving outside of the womb. Thus, the Ban prohibits abortion well before viability.
A. A Ban on Abortion at and After Six Weeks LMP Will Practically Eliminate Abortion Care in Ohio 35. Pregnancy is commonly measured from the first day of a woman’s last menstrual period. A full-term pregnancy is approximately forty weeks LMP. 36. The menstrual cycle is usually approximately four weeks long, but will vary based on the individual. Thus, even a woman with highly regular periods would be four weeks pregnant as measured from her last menstrual period when her missed period occurs. A ban on abortion at and after six weeks would only allow two weeks, at most, for a woman to learn that she is pregnant, decide whether to have an abortion, and to seek and obtain abortion care. 37. Prior to six weeks LMP, many women have none of the physical indicators of pregnancy. Many women do not menstruate at regular intervals, or they go long stretches without experiencing a menstrual period. Menstrual patterns commonly vary with age. Indeed, it is extremely common for women to have irregular periods at some point in their lives.
5 See Thomas Gellhaus, M.D., ACOG Opposes Fetal Heartbeat Legislation Restricting Women’s Legal Right to Abortion, American Congress of Obstetricians & Gynecologists (Jan. 18, 2017), https://www.acog.org/About-ACOG/News-Room/Statements/2017/ACOG-Opposes-FetalHeartbeat-Legislation-Restricting-Womens-Legal-Right-to-Abortion. 6 Another provision of Ohio law prohibits abortion after twenty weeks post-fertilization, or twenty-two weeks LMP. Ohio Rev. Code § 2919.201.
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Additionally, women may experience bleeding in early pregnancy that can be mistaken for a period.
38. Further, women who have certain common medical conditions, such as obesity, those who are breastfeeding, or those who use hormonal contraceptives may experience irregular periods and therefore may not recognize a missed period before six weeks LMP.
39. For all of these reasons, a woman may be six weeks pregnant but not realize she has missed a period, much less consider a missed period unusual or a signal that she may be pregnant.
40. On top of these biological realities, many patients face logistical obstacles that will make it difficult to obtain an abortion before six weeks in pregnancy.
41. For example, Ohio law mandates that a patient make two in-person trips to the clinic before obtaining an abortion in order to consent, determine whether there is cardiac activity, and receive state-mandated information. Ohio Rev. Code § 2317.56. These visits must be at least twenty-four hours apart. Id.
42. State law prohibits Medicaid and other public insurance programs, as well as private insurance plans listed on Ohio’s federally run insurance exchange, from covering abortion. Ohio Rev. Code §§ 9.04, 3901.87; Ohio Admin. Code § 5160-17-01. Thus, patients often need time to gather the resources to pay for the abortion and related costs, as well as to arrange transportation to the clinic, time off from work, and possibly arrange for childcare during appointments.
43. In addition to completing this two-day process, patients under eighteen must obtain written consent from a parent or a court order from a judge before receiving abortion care. Ohio Rev. Code § 2919.121.
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44. For all of the reasons stated above, approximately 90% of abortions in Ohio occur after six weeks.
45. Thus, the Ban will prohibit almost all abortion care in Ohio. B. Impact of Banning Abortion Care in Ohio
46. The near-total ban on abortion imposed by S.B. 23 would have a devastating impact on the lives of individuals who want to consider or seek abortion in Ohio.
47. Approximately one in four women in this country will have an abortion by age forty-five. A majority of those having abortions (61%) already have at least one child, while most (66%) also plan to have a child or additional children in the future.7
48. Legal abortion is one of the safest medical procedures in the United States and is substantially safer than continuing a pregnancy through to childbirth. The risk of death associated with childbirth is approximately fourteen times higher than that associated with abortion, and every pregnancy-related complication is more common among women giving birth than among those having abortions.8
49. If a woman is forced to continue a pregnancy against her will, it can pose a risk to her physical, mental, and emotional health, as well as to the stability and well-being of her family, including existing children.
7 See Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime Incidence of Abortion: United States, 2008-2014, Guttmacher Institute (Oct. 2017), https://www.guttmacher.org/article/2017/10/population-group-abortion-rates-and-lifetimeincidence-abortion-united-states-2008; Concern for Current and Future Children a Key Reason Women Have Abortions, Guttmacher Institute (Jan. 7, 2008), https://www.guttmacher.org/newsrelease/2008/concern-current-and-future-children-key-reason-women-have-abortions; Abortion Facts, National Abortion Federation, https://prochoice.org/education-and-advocacy/aboutabortion/abortion-facts/. 8 Elizabeth Raymond & David Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215, 215 (Feb. 2012).
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50. A child can place economic and emotional strain on a family and may interfere with an individual’s life goals. As most patients who seek abortion already have at least one child, families must consider how an additional child will impact their ability to care for the children they already have.
51. Even for someone who is otherwise healthy and has an uncomplicated pregnancy, carrying that pregnancy to term and giving birth poses serious medical risk and can have longterm medical and physical consequences. For a woman with a medical condition caused or exacerbated by pregnancy or for a woman who learns that her fetus has been diagnosed with a severe or lethal anomaly, these risks are increased.
52. Pregnancy, childbirth, and an additional child may exacerbate an already difficult situation for those who have suffered trauma, such as sexual assault or domestic violence.
53. If a woman is forced to continue a pregnancy against her will, it can pose a risk to her physical, mental, and emotional health, as well as to the stability and wellbeing of her family, including existing children.
54. S.B. 23 will have a disproportionate impact on the lives of Black people, other people of color, and people with low incomes in Ohio.
55. Statistics show that in 2017, Black people made up only 12.9% of Ohio’s population but 40% of people who obtained abortions in Ohio; Indigenous (American Indian) people and other people of color (Asian/Pacific Islander, Multiracial, and Hispanic people) made up 8.8% of the population, but 11.9% of the people that obtain abortions.9
9 Induced Abortions in Ohio, Ohio Dep’t of Health (2017), https://odh.ohio.gov/wps/portal/gov/odh/know-our-programs/vital-statistics/resources/vsabortionreport2017; Quick Facts: Ohio, U.S. Census Bureau, https://www.census.gov/quickfacts/oh.
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56. Were the Ban to go into effect, Black people are likely to suffer some of the gravest consequences. Recent statistics from the U.S. Centers for Disease Control and Prevention show that Black women are three times more likely than White women to die of causes related to pregnancy.10 In Ohio, Black infants are three times more likely than their White counterparts to die before their first birthday.11
57. A large majority of patients who obtain abortion care in Ohio are low income. 58. Absent an injunction, Plaintiffs will have no choice but to turn away patients in need of abortion care. Ohioans well-being and dignity would suffer irreparably. The Ban violates the constitutional rights of Plaintiffs’ patients and irreparably harms them.
CLAIMS FOR RELIEF COUNT I
(Substantive Due Process) 59. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 58. 60. By prohibiting abortion prior to viability, the Ban violates Ohioans’ right to privacy guaranteed by the Fourteenth Amendment to the U.S. Constitution. 61. If the Ban is allowed to take effect, Plaintiffs’ patients will be subject to irreparable harm for which no adequate remedy at law exists by preventing Plaintiffs’ patients
10 Emily E. Petersen et al., Vital Signs: Pregnancy-Related Deaths, United States, 2011-2015, and Strategies for Prevention, 13 States, 2013-2017, 68 Morbidity & Mortality Weekly Rep. 423 (May 10, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/mm6818e1.htm?s_cid=mm6818e1_w. 11 Ohio Infant Deaths in 2017 Second-Lowest on Record While Racial Disparities in Birth Outcomes Continued, Ohio Dep’t of Health (Dec. 6, 2018), https://odh.ohio.gov/wps/portal/gov/odh/media-center/odh-news-releases/2017-ohio-infantmortality-report.
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Case: 1:19-cv-00360-MRB Doc #: 1 Filed: 05/15/19 Page: 16 of 23 PAGEID #: 16 from obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional, medical, emotional, and other harm.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A. To immediately issue a temporary restraining order and/or preliminary injunction, and later a permanent injunction, restraining Defendants, their employees, agents, and successors in office from enforcing the Ban. B. To enter a judgment declaring that the Ban violates the Fourteenth Amendment to the U.S. Constitution. C. To award Plaintiffs their attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. D. To grant such other and further relief as the Court deems just and proper.
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Dated: May 15, 2019
Elizabeth Watson* Rachel Reeves* Brigitte Amiri* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2633 (212) 549-2650 (fax) ewatson@aclu.org rreeves@aclu.org bamiri@aclu.org Counsel for Plaintiff Preterm-Cleveland
Richard Muniz* Planned Parenthood Federation of America 1110 Vermont Ave NW, Suite 300 Washington, DC 20005 (202) 973-4800 (202) 296-3480 (fax) richard.muniz@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, and Sharon Liner, M.D.
Melissa Cohen* Planned Parenthood Federation of America 123 William Street, Floor 9 New York, NY 10038 (212) 541-7800 (212) 247-6811 (fax) melissa.cohen@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood Greater of Ohio, and Sharon Liner, M.D.

Respectfully Submitted,
/s/ B. Jessie Hill** B. Jessie Hill #0074770, Trial Attorney Freda J. Levenson #0045916 American Civil Liberties Union of Ohio, Foundation, Inc. 4506 Chester Ave. Cleveland, OH 44103 (216) 368-0553 – Jessie Hill (614) 586-1972 x 125 – Freda Levenson (614) 586-1974 (fax) bjh11@cwru.edu flevenson@acluohio.org Counsel for Plaintiff Preterm-Cleveland
Jennifer L. Branch # 0038893 Alphonse A. Gerhardstein # 0032053 Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202 (513) 621-9100 (513) 345-5543 (fax) agerhardstein@gbfirm.com jbranch@gbfirm.com Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Sharon Liner, M.D., Women’s Med Group Professional Corporation and Capital Care Network of Toledo
*Applications for admission pro hac vice forthcoming
** Cooperating Counsel for the ACLU of Ohio Foundation

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DECLARATION

I declare under penalty of perjury under the laws of the United States of America that the

statements contained in the Complaint are true and co1Tect to the best of my knowledge and

belief.

Sh~,......

Platmed Parenthood Southwest Ohio

O'f /1 ~ Executed on Date:

7

'

18

Case: 1:19-cv-00360-MRB Doc #: 1 Filed: 05/15/19 Page: 19 of 23 PAGEID #: 19

DECLARATION

I declare under penalty of perjury under the laws of the United States of America that the

statements contained in the Complaint related to PlaintiffPreterm-Cleveland are true and correct

to the best of my knowledge and belief.

L
Chrisse Franee
Executive Director Preterm-Cleveland
/zo Executed on Date: s-/1<.J I 'j ~~-,,__~,~~~"---

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Case: 1:19-cv-00360-MRB Doc #: 1 Filed: 05/15/19 Page: 20 of 23 PAGEID #: 20

DECLARATION I declare under penalty of perjury under the laws of the United States of America that the statements contained in the Complaint related to Plaintiff Planned Parenthood Southwest Ohio Region arc true and correct to the best of my knowledge and belief.

Sharon Liner, M.D. Planned Parenthood Southwest Ohio

sJ; Executed on Date:

tf );1

20

Case: 1:19-cv-00360-MRB Doc #: 1 Filed: 05/15/19 Page: 21 of 23 PAGEID #: 21

DECLARATION I declare under penalty of perjury under the laws of the United States of America that the statements contained in the Complaint related to Plaintiff Planned Parenthood of Greater Ohio are true and correct to the best ofmy knowledgJelief.

~--'---.'~~~~~--~~
Iris E. Harvey, Ed.S., MBA

President & CEO

Planned Parenthood of Greater Ohio

rn a:; Executed on Date:

I~ (}.fiJ I I

21

Case: 1:19-cv-00360-MRB Doc #: 1 Filed: 05/15/19 Page: 22 of 23 PAGEID #: 22 DECLARATION
I declare under penalty of perjury under the laws of the United States of America that the statements contained in the Complaint related to Plaintiff Women' s Med Group Professional Corporation are true and correct to the best of my knowledge and belief.
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Case: 1:19-cv-00360-MRB Doc #: 1 Filed: 05/15/19 Page: 23 of 23 PAGEID #: 23

DECLARATION

I declare under penalty ofperjury under the laws of the United States of America that the

statements contained in the Complaint related to PlaintfffCapital Care Network of Toledo are true

and correct to the best of my knowledge and b &

, '

~

TieHUbbfil'rl:CE

.

Capital Care Network of Toledo

Executed on Date: 5/15/ 19 --""""'-'~~~~~~

23

JS 44 (Rev 0) Case: 1:19-cv-00360-MRBCDIVocIL#:C1-O1VFEileRd:S0H5/E15E/1T9 Page: 1 of 2 PAGEID #: 24

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Preterm-Cleveland, et al

David Yost, et al

(b) County of Residence of First Listed Plaintiff Cuyahoga
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED

(c) Attorneys (Firm Name, Address, and Telephone Number)

B. Jessie Hill

4506 Chester Ave.

ACLU of Ohio

Cleveland, Ohio 44103

216-368-0553

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

u 1 U S Government Plaintiff

u 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

u 1 u 1 Incorporated or Principal Place

u 4 u4

of Business In This State

u 2 U S Government Defendant

u 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

u 2 u 2 Incorporated and Principal Place of Business In Another State

u 5 u5

Citizen or Subject of a Foreign Country

u 3 u 3 Foreign Nation

u 6 u6

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

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FORFEITURE/PENALTY

Click here for: Nature of Suit Code Descriptions.

BANKRUPTCY

OTHER STATUTES

u 110 Insurance

PERSONAL INJURY

PERSONAL INJURY u 625 Drug Related Seizure

u 422 Appeal 28 USC 158

u 120 Marine

u 310 Airplane

u 365 Personal Injury -

of Property 21 USC 881 u 423 Withdrawal

u 130 Miller Act

u 315 Airplane Product

Product Liability

u 690 Other

28 USC 157

u 140 Negotiable Instrument

Liability

u 367 Health Care/

u 150 Recovery of Overpayment u 320 Assault, Libel &

Pharmaceutical

PROPERTY RIGHTS

& Enforcement of Judgment

Slander

Personal Injury

u 820 Copyrights

u 151 Medicare Act

u 330 Federal Employers’

Product Liability

u 830 Patent

u 152 Recovery of Defaulted Student Loans

Liability u 340 Marine

u 368 Asbestos Personal Injury Product

u 835 Patent - Abbreviated New Drug Application

(Excludes Veterans)

u 345 Marine Product

Liability

u 840 Trademark

u 153 Recovery of Overpayment

Liability

PERSONAL PROPERTY

LABOR

SOCIAL SECURITY

of Veteran’s Benefits

u 350 Motor Vehicle

u 370 Other Fraud

u 710 Fair Labor Standards

u 861 HIA (1395ff)

u 160 Stockholders’ Suits

u 355 Motor Vehicle

u 371 Truth in Lending

Act

u 862 Black Lung (923)

u 190 Other Contract

Product Liability

u 380 Other Personal

u 720 Labor/Management

u 863 DIWC/DIWW (405(g))

u 195 Contract Product Liability u 360 Other Personal

Property Damage

Relations

u 864 SSID Title XVI

u 196 Franchise

Injury

u 385 Property Damage

u 740 Railway Labor Act

u 865 RSI (405(g))

u 362 Personal Injury -

Product Liability

u 751 Family and Medical

Medical Malpractice

Leave Act

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS u 790 Other Labor Litigation

FEDERAL TAX SUITS

u 210 Land Condemnation

u 440 Other Civil Rights

Habeas Corpus:

u 791 Employee Retirement

u 870 Taxes (U S Plaintiff

u 220 Foreclosure

u 441 Voting

u 463 Alien Detainee

Income Security Act

or Defendant)

u 230 Rent Lease & Ejectment u 442 Employment

u 510 Motions to Vacate

u 871 IRS—Third Party

u 240 Torts to Land

u 443 Housing/

Sentence

26 USC 7609

u 245 Tort Product Liability

Accommodations

u 530 General

u 290 All Other Real Property u 445 Amer w/Disabilities - u 535 Death Penalty

IMMIGRATION

Employment

Other:

u 462 Naturalization Application

u 446 Amer w/Disabilities - u 540 Mandamus & Other u 465 Other Immigration

Other

u 550 Civil Rights

Actions

u 448 Education

u 555 Prison Condition

u 560 Civil Detainee -

Conditions of

Confinement

u 375 False Claims Act u 376 Qui Tam (31 USC
3729(a)) u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and
Corrupt Organizations u 480 Consumer Credit u 485 Telephone Consumer
Protection Act u 490 Cable/Sat TV u 850 Securities/Commodities/
Exchange u 890 Other Statutory Actions u 891 Agricultural Acts u 893 Environmental Matters
u 895 Freedom of Information
Act u 896 Arbitration u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision u 950 Constitutionality of
State Statutes

V. ORIGIN (Place an “X” in One Box Only)

u 1 Original

u 2 Removed from

Proceeding

State Court

u 3 Remanded from Appellate Court

u 4 Reinstated or u 5 Transferred from

Reopened

Another District

(specify)

u 6 Multidistrict Litigation Transfer

u 8 Multidistrict Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. § 1983 VI. CAUSE OF ACTION Brief description of cause:
Challenge to State Law SB 23 which violated the 14th Amendment to the U.S. Constitution

VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER RULE 23, F.R.Cv.P.

JURY DEMAND: u Yes u No

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE Timothy S. Black

DOCKET NUMBER 1:18-cv-00109

DATE
03/15/2019
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
s/ B. Jessie Hill

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG JUDGE

JS 44 Reverse (Rev 0C)ase: 1:19-cv-00360-MRB Doc #: 1-1 Filed: 05/15/19 Page: 2 of 2 PAGEID #: 25
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) (b) (c)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".

,, Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)

,,, Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.
,9 Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions.
9 Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue.

9, Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

9,, Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
9,,, Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

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EXHIBIT A

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(133rd General Assembly) (Substitute Senate Bill Number 23)
AN ACT
To amend sections 2317.56, 2919.171, 2919.19, 2919.191, 2919.192, 2919.193, and 4731.22; to amend, for the purpose of adopting new section numbers as indicated in parentheses, sections 2919.191 (2919.192), 2919.192 (2919.194), and 2919.193 (2919.198); and to enact new sections 2919.191 and 2919.193 and sections 2919.195, 2919.196, 2919.197, 2919.199, 2919.1910, 2919.1912, 2919.1913, and 5103.11 of the Revised Code to enact the Human Rights and Heartbeat Protection Act.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 2317.56, 2919.171, 2919.19, 2919.191, 2919.192, 2919.193, and 4731.22 be amended; sections 2919.191 (2919.192), 2919.192 (2919.194), and 2919.193 (2919.198) be amended for the purpose of adopting new section numbers as shown in parentheses; and new sections 2919.191 and 2919.193 and sections 2919.195, 2919.196, 2919.197, 2919.199, 2919.1910, 2919.1912, 2919.1913, and 5103.11 of the Revised Code be enacted to read as follows:
Sec. 2317.56. (A) As used in this section: (1) "Medical emergency" has the same meaning as in section 2919.16 of the Revised Code. (2) "Medical necessity" means a medical condition of a pregnant woman that, in the reasonable judgment of the physician who is attending the woman, so complicates the pregnancy that it necessitates the immediate performance or inducement of an abortion. (3) "Probable gestational age of the embryo or fetus" means the gestational age that, in the judgment of a physician, is, with reasonable probability, the gestational age of the embryo or fetus at the time that the physician informs a pregnant woman pursuant to division (B)(1)(b) of this section. (B) Except when there is a medical emergency or medical necessity, an abortion shall be performed or induced only if all of the following conditions are satisfied: (1) At least twenty-four hours prior to the performance or inducement of the abortion, a physician meets with the pregnant woman in person in an individual, private setting and gives her an adequate opportunity to ask questions about the abortion that will be performed or induced. At this meeting, the physician shall inform the pregnant woman, verbally or, if she is hearing impaired, by other means of communication, of all of the following: (a) The nature and purpose of the particular abortion procedure to be used and the medical risks associated with that procedure; (b) The probable gestational age of the embryo or fetus; (c) The medical risks associated with the pregnant woman carrying the pregnancy to term. The meeting need not occur at the facility where the abortion is to be performed or induced, and the physician involved in the meeting need not be affiliated with that facility or with the

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physician who is scheduled to perform or induce the abortion. (2) At least twenty-four hours prior to the performance or inducement of the abortion, the
physician who is to perform or induce the abortion or the physician's agent does each of the following in person, by telephone, by certified mail, return receipt requested, or by regular mail evidenced by a certificate of mailing:
(a) Inform the pregnant woman of the name of the physician who is scheduled to perform or induce the abortion;
(b) Give the pregnant woman copies of the published materials described in division (C) of this section;
(c) Inform the pregnant woman that the materials given pursuant to division (B)(2)(b) of this section are published by the state and that they describe the embryo or fetus and list agencies that offer alternatives to abortion. The pregnant woman may choose to examine or not to examine the materials. A physician or an agent of a physician may choose to be disassociated from the materials and may choose to comment or not comment on the materials.
(3) If it has been determined that the unborn human individual the pregnant woman is carrying has a detectable fetal heartbeat, the physician who is to perform or induce the abortion shall comply with the informed consent requirements in section 2919.192 2919.194 of the Revised Code in addition to complying with the informed consent requirements in divisions (B)(1), (2), (4), and (5) of this section.
(4) Prior to the performance or inducement of the abortion, the pregnant woman signs a form consenting to the abortion and certifies both of the following on that form:
(a) She has received the information and materials described in divisions (B)(1) and (2) of this section, and her questions about the abortion that will be performed or induced have been answered in a satisfactory manner.
(b) She consents to the particular abortion voluntarily, knowingly, intelligently, and without coercion by any person, and she is not under the influence of any drug of abuse or alcohol.
The form shall contain the name and contact information of the physician who provided to the pregnant woman the information described in division (B)(1) of this section.
(5) Prior to the performance or inducement of the abortion, the physician who is scheduled to perform or induce the abortion or the physician's agent receives a copy of the pregnant woman's signed form on which she consents to the abortion and that includes the certification required by division (B)(4) of this section.
(C) The department of health shall publish in English and in Spanish, in a typeface large enough to be clearly legible, and in an easily comprehensible format, the following materials on the department's web site:
(1) Materials that inform the pregnant woman about family planning information, of publicly funded agencies that are available to assist in family planning, and of public and private agencies and services that are available to assist her through the pregnancy, upon childbirth, and while the child is dependent, including, but not limited to, adoption agencies. The materials shall be geographically indexed; include a comprehensive list of the available agencies, a description of the services offered by the agencies, and the telephone numbers and addresses of the agencies; and inform the pregnant woman about available medical assistance benefits for prenatal care, childbirth, and neonatal care

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and about the support obligations of the father of a child who is born alive. The department shall ensure that the materials described in division (C)(1) of this section are comprehensive and do not directly or indirectly promote, exclude, or discourage the use of any agency or service described in this division.
(2) Materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the zygote, blastocyte, embryo, or fetus at two-week gestational increments for the first sixteen weeks of pregnancy and at four-week gestational increments from the seventeenth week of pregnancy to full term, including any relevant information regarding the time at which the fetus possibly would be viable. The department shall cause these materials to be published only after it consults with the Ohio state medical association and the Ohio section of the American college of obstetricians and gynecologists independent health care experts relative to the probable anatomical and physiological characteristics of a zygote, blastocyte, embryo, or fetus at the various gestational increments. The materials shall use language that is understandable by the average person who is not medically trained, shall be objective and nonjudgmental, and shall include only accurate scientific information about the zygote, blastocyte, embryo, or fetus at the various gestational increments. If the materials use a pictorial, photographic, or other depiction to provide information regarding the zygote, blastocyte, embryo, or fetus, the materials shall include, in a conspicuous manner, a scale or other explanation that is understandable by the average person and that can be used to determine the actual size of the zygote, blastocyte, embryo, or fetus at a particular gestational increment as contrasted with the depicted size of the zygote, blastocyte, embryo, or fetus at that gestational increment.
(D) Upon the submission of a request to the department of health by any person, hospital, physician, or medical facility for one copy of the materials published in accordance with division (C) of this section, the department shall make the requested copy of the materials available to the person, hospital, physician, or medical facility that requested the copy.
(E) If a medical emergency or medical necessity compels the performance or inducement of an abortion, the physician who will perform or induce the abortion, prior to its performance or inducement if possible, shall inform the pregnant woman of the medical indications supporting the physician's judgment that an immediate abortion is necessary. Any physician who performs or induces an abortion without the prior satisfaction of the conditions specified in division (B) of this section because of a medical emergency or medical necessity shall enter the reasons for the conclusion that a medical emergency or medical necessity exists in the medical record of the pregnant woman.
(F) If the conditions specified in division (B) of this section are satisfied, consent to an abortion shall be presumed to be valid and effective.
(G) The performance or inducement of an abortion without the prior satisfaction of the conditions specified in division (B) of this section does not constitute, and shall not be construed as constituting, a violation of division (A) of section 2919.12 of the Revised Code. The failure of a physician to satisfy the conditions of division (B) of this section prior to performing or inducing an abortion upon a pregnant woman may be the basis of both of the following:
(1) A civil action for compensatory and exemplary damages as described in division (H) of this section;

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(2) Disciplinary action under section 4731.22 of the Revised Code. (H)(1) Subject to divisions (H)(2) and (3) of this section, any physician who performs or induces an abortion with actual knowledge that the conditions specified in division (B) of this section have not been satisfied or with a heedless indifference as to whether those conditions have been satisfied is liable in compensatory and exemplary damages in a civil action to any person, or the representative of the estate of any person, who sustains injury, death, or loss to person or property as a result of the failure to satisfy those conditions. In the civil action, the court additionally may enter any injunctive or other equitable relief that it considers appropriate. (2) The following shall be affirmative defenses in a civil action authorized by division (H)(1) of this section: (a) The physician performed or induced the abortion under the circumstances described in division (E) of this section. (b) The physician made a good faith effort to satisfy the conditions specified in division (B) of this section. (3) An employer or other principal is not liable in damages in a civil action authorized by division (H)(1) of this section on the basis of the doctrine of respondeat superior unless either of the following applies: (a) The employer or other principal had actual knowledge or, by the exercise of reasonable diligence, should have known that an employee or agent performed or induced an abortion with actual knowledge that the conditions specified in division (B) of this section had not been satisfied or with a heedless indifference as to whether those conditions had been satisfied. (b) The employer or other principal negligently failed to secure the compliance of an employee or agent with division (B) of this section. (4) Notwithstanding division (E) of section 2919.12 of the Revised Code, the civil action authorized by division (H)(1) of this section shall be the exclusive civil remedy for persons, or the representatives of estates of persons, who allegedly sustain injury, death, or loss to person or property as a result of a failure to satisfy the conditions specified in division (B) of this section. (I) The department of job and family services shall prepare and conduct a public information program to inform women of all available governmental programs and agencies that provide services or assistance for family planning, prenatal care, child care, or alternatives to abortion. Sec. 2919.171. (A)(1) A physician who performs or induces or attempts to perform or induce an abortion on a pregnant woman shall submit a report to the department of health in accordance with the forms, rules, and regulations adopted by the department that includes all of the information the physician is required to certify in writing or determine under sections section 2919.17 and , section 2919.18, divisions (A) and (C) of section 2919.192, division (C) of section 2919.193, division (B) of section 2919.195, or division (A) of section 2919.196 of the Revised Code:. (2) If a person other than the physician described in division (A)(1) of this section makes or maintains a record required by sections 2919.192 to 2919.196 of the Revised Code on the physician's behalf or at the physician's direction, that person shall comply with the reporting requirement described in division (A)(1) of this section as if the person were the physician described in that division. (B) By September 30 of each year, the department of health shall issue a public report that

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provides statistics for the previous calendar year compiled from all of the reports covering that calendar year submitted to the department in accordance with this section for each of the items listed in division (A) of this section. The report shall also provide the statistics for each previous calendar year in which a report was filed with the department pursuant to this section, adjusted to reflect any additional information that a physician provides to the department in a late or corrected report. The department shall ensure that none of the information included in the report could reasonably lead to the identification of any pregnant woman upon whom an abortion is performed.
(C)(1) The physician shall submit the report described in division (A) of this section to the department of health within fifteen days after the woman is discharged. If the physician fails to submit the report more than thirty days after that fifteen-day deadline, the physician shall be subject to a late fee of five hundred dollars for each additional thirty-day period or portion of a thirty-day period the report is overdue. A physician who is required to submit to the department of health a report under division (A) of this section and who has not submitted a report or has submitted an incomplete report more than one year following the fifteen-day deadline may, in an action brought by the department of health, be directed by a court of competent jurisdiction to submit a complete report to the department of health within a period of time stated in a court order or be subject to contempt of court.
(2) If a physician fails to comply with the requirements of this section, other than filing a late report with the department of health, or fails to submit a complete report to the department of health in accordance with a court order, the physician is subject to division (B)(44) of section 4731.22 of the Revised Code.
(3) No person shall falsify any report required under this section. Whoever violates this division is guilty of abortion report falsification, a misdemeanor of the first degree.
(D) Within ninety days of October 20, 2011, the The department of health shall adopt rules pursuant to section 111.15 of the Revised Code to assist in compliance with this section.
Sec. 2919.19. (A) As used in this section and sections 2919.191 to 2919.193 2919.1910 of the Revised Code:
(A) (1) "Conception" means fertilization. (2) "Contraceptive" means a drug, device, or chemical that prevents conception. (3) "DNA" means deoxyribonucleic acid. (4) "Fetal heartbeat" means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac. (B) (5) "Fetus" means the human offspring developing during pregnancy from the moment of conception and includes the embryonic stage of development. (C) (6) "Gestational age" means the age of an unborn human individual as calculated from the first day of the last menstrual period of a pregnant woman. (D) (7) "Gestational sac" means the structure that comprises the extraembryonic membranes that envelop the fetus and that is typically visible by ultrasound after the fourth week of pregnancy. (E) (8) "Intrauterine pregnancy" means a pregnancy in which the fetus is attached to the placenta within the uterus of the pregnant woman. (9) "Medical emergency" has the same meaning as in section 2919.16 of the Revised Code. (F) (10) "Physician" has the same meaning as in section 2305.113 of the Revised Code.

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(G) (11) "Pregnancy" means the human female reproductive condition that begins with fertilization, when the woman is carrying the developing human offspring, and that is calculated from the first day of the last menstrual period of the woman.
(H) (12) "Serious risk of the substantial and irreversible impairment of a major bodily function" has the same meaning as in section 2919.16 of the Revised Code.
(I) (13) "Spontaneous miscarriage" means the natural or accidental termination of a pregnancy and the expulsion of the fetus, typically caused by genetic defects in the fetus or physical abnormalities in the pregnant woman.
(14) "Standard medical practice" means the degree of skill, care, and diligence that a physician of the same medical specialty would employ in like circumstances. As applied to the method used to determine the presence of a fetal heartbeat for purposes of section 2919.191 2919.192 of the Revised Code, "standard medical practice" includes employing the appropriate means of detection depending on the estimated gestational age of the fetus and the condition of the woman and her pregnancy.
(J) (15) "Unborn human individual" means an individual organism of the species homo sapiens from fertilization until live birth.
(B)(1) It is the intent of the general assembly that a court judgment or order suspending enforcement of any provision of this section or sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code is not to be regarded as tantamount to repeal of that provision.
(2) Upon the issuance of any court order or judgment restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, or the effective date of an amendment to the United States Constitution restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, the attorney general may apply to the pertinent state or federal court for either or both of the following:
(a) A declaration that any one or more sections specified in division (B)(1) of this section are constitutional;
(b) A judgment or order lifting an injunction against the enforcement of any one or more sections specified in division (B)(1) of this section.
(3) If the attorney general fails to apply for the relief described in division (B)(2) of this section within the thirty-day period after an event described in that division occurs, any county prosecutor, with standing, may apply to the appropriate state or federal court for such relief.
(4) If any provision of this section or sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code is held invalid, or if the application of such provision to any person or circumstance is held invalid, the invalidity of that provision does not affect any other provisions or applications of this section and sections 2919.171 and 2919.191 to 2919.1913 of the Revised Code that can be given effect without the invalid provision or application, and to this end the provisions of this section and sections 2919.171 and 2919.191 to 2919.1913 of the Revised Code are severable as provided in section 1.50 of the Revised Code. In particular, it is the intent of the general assembly that any invalidity or potential invalidity of a provision of this section or sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code is not to impair the immediate and continuing enforceability of the remaining provisions. It is furthermore the intent of the general assembly that the provisions of this section and sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code are not to have the

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effect of repealing or limiting any other laws of this state, except as specified by this section and sections 2919.171 and 2919.191 to 2919.1913 of the Revised Code.
Sec. 2919.191. Sections 2919.192 to 2919.195 of the Revised Code apply only to intrauterine pregnancies.
Sec. 2919.191 2919.192. (A) A person who intends to perform or induce an abortion on a pregnant woman shall determine whether there is a detectable fetal heartbeat of the unborn human individual the pregnant woman is carrying. The method of determining the presence of a fetal heartbeat shall be consistent with the person's good faith understanding of standard medical practice, provided that if rules have been adopted under division (C) (B) of this section, the method chosen shall be one that is consistent with the rules. The person who determines the presence or absence of a fetal heartbeat shall record in the pregnant woman's medical record the estimated gestational age of the unborn human individual, the method used to test for a fetal heartbeat, the date and time of the test, and the results of the test.
(B)(1) Except when a medical emergency exists that prevents compliance with this division, no person shall perform or induce an abortion on a pregnant woman prior to determining if the unborn human individual the pregnant woman is carrying has a detectable fetal heartbeat. Any person who performs or induces an abortion on a pregnant woman based on the exception in this division shall note in the pregnant woman's medical records that a medical emergency necessitating the abortion existed and shall also note the medical condition of the pregnant woman that prevented compliance with this division. The person shall maintain a copy of the notes described in this division in the person's own records for at least seven years after the notes are entered into the medical records.
(2) 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.
(C) The (B) Not later than one hundred twenty days of the effective date of S.B. 23 of the 133rd general assembly, the director of health may promulgate shall adopt rules pursuant to section 111.15 of the Revised Code specifying the appropriate methods of performing an examination for the purpose of determining the presence of a fetal heartbeat of an unborn individual based on standard medical practice. The rules shall require only that an examination shall be performed externally.
(D) (C) A person is not in violation of division (A) or (B) of this section if that person has performed an examination for the purpose of determining the presence of a fetal heartbeat in the fetus of an unborn human individual utilizing standard medical practice in accordance with rules adopted under division (B) of this section, that examination does not reveal a fetal heartbeat or the person has been informed by a physician who has performed the examination for a fetal heartbeat that the examination did not reveal a fetal heartbeat, and the person notes in the pregnant woman's medical records the procedure utilized to detect the presence of a fetal heartbeat.
(E) Except as provided in division (F) of this section, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman before determining in accordance with division (A) of this section whether the unborn human individual the pregnant woman is carrying has a detectable heartbeat. The failure of a person to satisfy the requirements of this section prior to performing or inducing an abortion on a pregnant woman may be the basis for either of the following:

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(1) A civil action for compensatory and exemplary damages; (2) Disciplinary action under section 4731.22 of the Revised Code. (F) Division (E) of this section does not apply to a physician who performs or induces the abortion if the physician believes that a medical emergency exists that prevents compliance with that division. (G) The director of health may determine and specify in rules adopted pursuant to section 111.15 of the Revised Code and based upon available medical evidence the statistical probability of bringing an unborn human individual to term based on the gestational age of an unborn human individual who possesses a detectable fetal heartbeat. (H) A woman on whom an abortion is performed in violation of division (B) of this section or division (B)(3) of section 2317.56 of the Revised Code may file a civil action for the wrongful death of the woman's unborn child and may receive at the mother's election at any time prior to final judgment damages in an amount equal to ten thousand dollars or an amount determined by the trier of fact after consideration of the evidence subject to the same defenses and requirements of proof, except any requirement of live birth, as would apply to a suit for the wrongful death of a child who had been born alive. Sec. 2919.193. (A) Except as provided in division (B) of this section, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman before determining in accordance with division (A) of section 2919.192 of the Revised Code whether the unborn human individual the pregnant woman is carrying has a detectable heartbeat. Whoever violates this division is guilty of performing or inducing an abortion before determining whether there is a detectable fetal heartbeat, a felony of the fifth degree. A violation of this division may also be the basis of either of the following: (1) A civil action for compensatory and exemplary damages; (2) Disciplinary action under section 4731.22 of the Revised Code. (B) Division (A) of this section does not apply to a physician who performs or induces the abortion if the physician believes that a medical emergency, as defined in section 2919.16 of the Revised Code, exists that prevents compliance with that division. (C) A physician who performs or induces an abortion on a pregnant woman based on the exception in division (B) of this section shall make written notations in the pregnant woman's medical records of both of the following: (1) The physician's belief that a medical emergency necessitating the abortion existed; (2) The medical condition of the pregnant woman that assertedly prevented compliance with division (A) of this section. For at least seven years from the date the notations are made, the physician shall maintain in the physician's own records a copy of the notations. (D) A person is not in violation of division (A) of this section if the person acts in accordance with division (A) of section 2919.192 of the Revised Code and the method used to determine the presence of a fetal heartbeat does not reveal a fetal heartbeat. Sec. 2919.192 2919.194. (A) If Notwithstanding division (A)(3) of this section, if a person who intends to perform or induce an abortion on a pregnant woman has determined, under section 2919.191 2919.192 of the Revised Code, that the unborn human individual the pregnant woman is

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carrying has a detectable heartbeat, the person shall not, except as provided in division (B) of this section, perform or induce the abortion until without meeting all of the following requirements have been met and without at least twenty-four hours have elapsed elapsing after the last of the requirements is met:
(1) The person intending to perform or induce the abortion shall inform the pregnant woman in writing that the unborn human individual the pregnant woman is carrying has a fetal heartbeat.
(2) The person intending to perform or induce the abortion shall inform the pregnant woman, to the best of the person's knowledge, of the statistical probability of bringing the unborn human individual possessing a detectable fetal heartbeat to term based on the gestational age of the unborn human individual the pregnant woman is carrying or, if the director of health has specified statistical probability information pursuant to rules adopted under division (C) of this section, shall provide to the pregnant woman that information.
(3) The pregnant woman shall sign a form acknowledging that the pregnant woman has received information from the person intending to perform or induce the abortion that the unborn human individual the pregnant woman is carrying has a fetal heartbeat and that the pregnant woman is aware of the statistical probability of bringing the unborn human individual the pregnant woman is carrying to term.
(B) Division (A) of this section does not apply if the person who intends to perform or induce the abortion believes that a medical emergency exists that prevents compliance with that division.
(C) The director of health may adopt rules that specify information regarding the statistical probability of bringing an unborn human individual possessing a detectable heartbeat to term based on the gestational age of the unborn human individual. The rules shall be based on available medical evidence and shall be adopted in accordance with section 111.15 of the Revised Code.
(D) This section does not have the effect of repealing or limiting any other provision of the Revised Code relating to informed consent for an abortion, including the provisions in section 2317.56 of the Revised Code.
(E) Whoever violates division (A) of this section 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.
Sec. 2919.195. (A) Except as provided in division (B) of this section, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the unborn human individual the pregnant woman is carrying and whose fetal heartbeat has been detected in accordance with division (A) of section 2919.192 of the Revised Code.
Whoever violates this division is guilty of performing or inducing an abortion after the detection of a fetal heartbeat, a felony of the fifth degree.
(B) Division (A) of this section does not apply to a physician who performs a medical procedure that, in the physician's reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
A physician who performs a medical procedure as described in this division shall declare, in a written document, that the medical procedure is necessary, to the best of the physician's reasonable

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medical judgment, to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. In the document, the physician shall specify the pregnant woman's medical condition that the medical procedure is asserted to address and the medical rationale for the physician's conclusion that the medical procedure is necessary to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
A physician who performs a medical procedure as described in this division shall place the written document required by this division in the pregnant woman's medical records. The physician shall maintain a copy of the document in the physician's own records for at least seven years from the date the document is created.
(C) A person is not in violation of division (A) of this section if the person acts in accordance with division (A) of section 2919.192 of the Revised Code and the method used to determine the presence of a fetal heartbeat does not reveal a fetal heartbeat.
(D) Division (A) of this section does not have the effect of repealing or limiting any other provision of the Revised Code that restricts or regulates the performance or inducement of an abortion by a particular method or during a particular stage of a pregnancy.
Sec. 2919.196. The provisions of this section are wholly independent of the requirements of sections 2919.192 to 2919.195 of the Revised Code.
(A) A person who performs or induces an abortion on a pregnant woman shall do whichever of the following is applicable:
(1) If a purported reason for the abortion is to preserve the health of the pregnant woman, the person shall specify in a written document the medical condition that the abortion is asserted to address and the medical rationale for the person's conclusion that the abortion is necessary to address that condition.
(2) If division (A)(1) of this section does not apply, the person shall specify in a written document that maternal health is not a reason of the abortion.
(B) The person who specifies the information in the document described in division (A) of this section shall place the document in the pregnant woman's medical records. The person who specifies the information shall maintain a copy of the document in the person's own records for at least seven years from the date the document is created.
Sec. 2919.197. Nothing in sections 2919.19 to 2919.196 of the Revised Code prohibits the sale, use, prescription, or administration of a drug, device, or chemical for contraceptive purposes.
Sec. 2919.193 2919.198. A pregnant woman on whom an abortion is performed or induced in violation of section 2919.191 or 2919.192 2919.193, 2919.194, or 2919.195 of the Revised Code is not guilty of violating any of those sections; is not guilty of attempting to commit, conspiring to commit, or complicity in committing a violation of any of those sections; and is not subject to a civil penalty based on the abortion being performed or induced in violation of any of those sections.
Sec. 2919.199. (A) A woman who meets either or both of the following criteria may file a civil action for the wrongful death of her unborn child:
(1) A woman on whom an abortion was performed or induced in violation of division (A) of section 2919.193 or division (A) of section 2919.195 of the Revised Code;
(2) A woman on whom an abortion was performed or induced who was not given the

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information described in divisions (A)(1) and (2) of section 2919.194 of the Revised Code or who did not sign a form described in division (A)(3) of section 2919.194 of the Revised code.
(B) A woman who prevails in an action filed under division (A) of this section shall receive both of the following from the person who committed the one or more acts described in division (A) (1) or (2) of this section:
(1) Damages in an amount equal to ten thousand dollars or an amount determined by the trier of fact after consideration of the evidence at the mother's election at any time prior to final judgment subject to the same defenses and requirements of proof, except any requirement of live birth, as would apply to a suit for the wrongful death of a child who had been born alive;
(2) Court costs and reasonable attorney's fees. (C) A determination by a court of record that division (A) of section 2919.193 of the Revised Code, division (A)(1), (2), or (3) of section 2919.194 of the Revised Code, or division (A) of section 2919.195 of the Revised Code is unconstitutional shall be a defense to an action filed under division (A) of this section alleging that the defendant violated the division that was determined to be unconstitutional. (D) If the defendant in an action filed under division (A) of this section prevails and all of the following apply the court shall award reasonable attorney's fees to the defendant in accordance with section 2323.51 of the Revised Code: (1) The court finds that the commencement of the action constitutes frivolous conduct, as defined in section 2323.51 of the Revised Code. (2) The court's finding in division (D)(1) of this section is not based on that court or another court determining that division (A) of section 2919.193 of the Revised Code, division (A)(1), (2), or (3) of section 2919.194 of the Revised Code, or division (A) of section 2919.195 of the Revised Code is unconstitutional. (3) The court finds that the defendant was adversely affected by the frivolous conduct. Sec. 2919.1910. (A) To ensure that citizens are informed of available options in this state, there is hereby created the joint legislative committee on adoption promotion and support. The committee may review or study any matter that it considers relevant to the adoption process in this state, with priority given to the study or review of mechanisms intended to increase awareness of the process, increase its effectiveness, or both. (B) The committee shall consist of three members of the house of representatives appointed by the speaker of the house of representatives and three members of the senate appointed by the president of the senate. Not more than two members appointed by the speaker of the house of representatives and not more than two members appointed by the president of the senate may be of the same political party. Each member of the committee shall hold office during the general assembly in which the member is appointed and until a successor has been appointed, notwithstanding the adjournment sine die of the general assembly in which the member was appointed or the expiration of the member's term as a member of the general assembly. Any vacancies occurring among the members of the committee shall be filled in the manner of the original appointment. (C) The committee has the same powers as other standing or select committees of the general assembly.

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Sec. 2919.1912. (A) The state medical board may assess against a person a forfeiture of not more than twenty thousand dollars for each separate violation or failure of the person to comply with any of the requirements of sections 2919.171, 2919.192, 2919.193, 2919.194, 2919.195, or 2919.196 of the Revised Code. The board shall comply with the adjudication requirements of Chapter 119. of the Revised Code when assessing the forfeiture. The forfeiture may be in addition to criminal penalties that are imposed under other sections of the Revised Code.
(B) An action to recover a forfeiture shall be prosecuted in the name of the state and shall be brought in the court of common pleas of Franklin county. The action shall be commenced and prosecuted by the attorney general when directed by the board.
(C) Moneys collected under division (A) of this section or recovered by an action under division (B) of this section shall be paid to the treasurer of state for deposit into the foster care and adoption initiatives fund created under section 5103.11 of the Revised Code.
Sec. 2919.1913. Sections 2919.171, 2919.19 to 2919.1913, and 4731.22 of the Revised Code, as amended or enacted by this act, shall be known as the "Human Rights and Heartbeat Protection Act."
Sec. 4731.22. (A) The state medical board, by an affirmative vote of not fewer than six of its members, may limit, revoke, or suspend a license or certificate to practice or certificate to recommend, refuse to grant a license or certificate, refuse to renew a license or certificate, refuse to reinstate a license or certificate, or reprimand or place on probation the holder of a license or certificate if the individual applying for or holding the license or certificate is found by the board to have committed fraud during the administration of the examination for a license or certificate to practice or to have committed fraud, misrepresentation, or deception in applying for, renewing, or securing any license or certificate to practice or certificate to recommend issued by the board.
(B) The board, by an affirmative vote of not fewer than six members, shall, to the extent permitted by law, limit, revoke, or suspend a license or certificate to practice or certificate to recommend, refuse to issue a license or certificate, refuse to renew a license or certificate, refuse to reinstate a license or certificate, or reprimand or place on probation the holder of a license or certificate for one or more of the following reasons:
(1) Permitting one's name or one's license or certificate to practice to be used by a person, group, or corporation when the individual concerned is not actually directing the treatment given;
(2) Failure to maintain minimal standards applicable to the selection or administration of drugs, or failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease;
(3) Except as provided in section 4731.97 of the Revised Code, selling, giving away, personally furnishing, prescribing, or administering drugs for other than legal and legitimate therapeutic purposes or a plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction of, a violation of any federal or state law regulating the possession, distribution, or use of any drug;
(4) Willfully betraying a professional confidence. For purposes of this division, "willfully betraying a professional confidence" does not include providing any information, documents, or reports under sections 307.621 to 307.629 of the Revised Code to a child fatality review board; does not include providing any information, documents, or

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reports to the director of health pursuant to guidelines established under section 3701.70 of the Revised Code; does not include written notice to a mental health professional under section 4731.62 of the Revised Code; and does not include the making of a report of an employee's use of a drug of abuse, or a report of a condition of an employee other than one involving the use of a drug of abuse, to the employer of the employee as described in division (B) of section 2305.33 of the Revised Code. Nothing in this division affects the immunity from civil liability conferred by section 2305.33 or 4731.62 of the Revised Code upon a physician who makes a report in accordance with section 2305.33 or notifies a mental health professional in accordance with section 4731.62 of the Revised Code. As used in this division, "employee," "employer," and "physician" have the same meanings as in section 2305.33 of the Revised Code.
(5) Making a false, fraudulent, deceptive, or misleading statement in the solicitation of or advertising for patients; in relation to the practice of medicine and surgery, osteopathic medicine and surgery, podiatric medicine and surgery, or a limited branch of medicine; or in securing or attempting to secure any license or certificate to practice issued by the board.
As used in this division, "false, fraudulent, deceptive, or misleading statement" means a statement that includes a misrepresentation of fact, is likely to mislead or deceive because of a failure to disclose material facts, is intended or is likely to create false or unjustified expectations of favorable results, or includes representations or implications that in reasonable probability will cause an ordinarily prudent person to misunderstand or be deceived.
(6) A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established;
(7) Representing, with the purpose of obtaining compensation or other advantage as personal gain or for any other person, that an incurable disease or injury, or other incurable condition, can be permanently cured;
(8) The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice;
(9) A plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a felony;
(10) Commission of an act that constitutes a felony in this state, regardless of the jurisdiction in which the act was committed;
(11) A plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a misdemeanor committed in the course of practice;
(12) Commission of an act in the course of practice that constitutes a misdemeanor in this state, regardless of the jurisdiction in which the act was committed;
(13) A plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a misdemeanor involving moral turpitude;
(14) Commission of an act involving moral turpitude that constitutes a misdemeanor in this state, regardless of the jurisdiction in which the act was committed;
(15) Violation of the conditions of limitation placed by the board upon a license or certificate to practice;
(16) Failure to pay license renewal fees specified in this chapter;

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(17) Except as authorized in section 4731.31 of the Revised Code, engaging in the division of fees for referral of patients, or the receiving of a thing of value in return for a specific referral of a patient to utilize a particular service or business;
(18) Subject to section 4731.226 of the Revised Code, violation of any provision of a code of ethics of the American medical association, the American osteopathic association, the American podiatric medical association, or any other national professional organizations that the board specifies by rule. The state medical board shall obtain and keep on file current copies of the codes of ethics of the various national professional organizations. The individual whose license or certificate is being suspended or revoked shall not be found to have violated any provision of a code of ethics of an organization not appropriate to the individual's profession.
For purposes of this division, a "provision of a code of ethics of a national professional organization" does not include any provision that would preclude the making of a report by a physician of an employee's use of a drug of abuse, or of a condition of an employee other than one involving the use of a drug of abuse, to the employer of the employee as described in division (B) of section 2305.33 of the Revised Code. Nothing in this division affects the immunity from civil liability conferred by that section upon a physician who makes either type of report in accordance with division (B) of that section. As used in this division, "employee," "employer," and "physician" have the same meanings as in section 2305.33 of the Revised Code.
(19) Inability to practice according to acceptable and prevailing standards of care by reason of mental illness or physical illness, including, but not limited to, physical deterioration that adversely affects cognitive, motor, or perceptive skills.
In enforcing this division, the board, upon a showing of a possible violation, may compel any individual authorized to practice by this chapter or who has submitted an application pursuant to this chapter to submit to a mental examination, physical examination, including an HIV test, or both a mental and a physical examination. The expense of the examination is the responsibility of the individual compelled to be examined. Failure to submit to a mental or physical examination or consent to an HIV test ordered by the board constitutes an admission of the allegations against the individual unless the failure is due to circumstances beyond the individual's control, and a default and final order may be entered without the taking of testimony or presentation of evidence. If the board finds an individual unable to practice because of the reasons set forth in this division, the board shall require the individual to submit to care, counseling, or treatment by physicians approved or designated by the board, as a condition for initial, continued, reinstated, or renewed authority to practice. An individual affected under this division shall be afforded an opportunity to demonstrate to the board the ability to resume practice in compliance with acceptable and prevailing standards under the provisions of the individual's license or certificate. For the purpose of this division, any individual who applies for or receives a license or certificate to practice under this chapter accepts the privilege of practicing in this state and, by so doing, shall be deemed to have given consent to submit to a mental or physical examination when directed to do so in writing by the board, and to have waived all objections to the admissibility of testimony or examination reports that constitute a privileged communication.
(20) Except as provided in division (F)(1)(b) of section 4731.282 of the Revised Code or when civil penalties are imposed under section 4731.225 of the Revised Code, and subject to section

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4731.226 of the Revised Code, violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provisions of this chapter or any rule promulgated by the board.
This division does not apply to a violation or attempted violation of, assisting in or abetting the violation of, or a conspiracy to violate, any provision of this chapter or any rule adopted by the board that would preclude the making of a report by a physician of an employee's use of a drug of abuse, or of a condition of an employee other than one involving the use of a drug of abuse, to the employer of the employee as described in division (B) of section 2305.33 of the Revised Code. Nothing in this division affects the immunity from civil liability conferred by that section upon a physician who makes either type of report in accordance with division (B) of that section. As used in this division, "employee," "employer," and "physician" have the same meanings as in section 2305.33 of the Revised Code.
(21) The violation of section 3701.79 of the Revised Code or of any abortion rule adopted by the director of health pursuant to section 3701.341 of the Revised Code;
(22) Any of the following actions taken by an agency responsible for authorizing, certifying, or regulating an individual to practice a health care occupation or provide health care services in this state or another jurisdiction, for any reason other than the nonpayment of fees: the limitation, revocation, or suspension of an individual's license to practice; acceptance of an individual's license surrender; denial of a license; refusal to renew or reinstate a license; imposition of probation; or issuance of an order of censure or other reprimand;
(23) The violation of section 2919.12 of the Revised Code or the performance or inducement of an abortion upon a pregnant woman with actual knowledge that the conditions specified in division (B) of section 2317.56 of the Revised Code have not been satisfied or with a heedless indifference as to whether those conditions have been satisfied, unless an affirmative defense as specified in division (H)(2) of that section would apply in a civil action authorized by division (H)(1) of that section;
(24) The revocation, suspension, restriction, reduction, or termination of clinical privileges by the United States department of defense or department of veterans affairs or the termination or suspension of a certificate of registration to prescribe drugs by the drug enforcement administration of the United States department of justice;
(25) Termination or suspension from participation in the medicare or medicaid programs by the department of health and human services or other responsible agency;
(26) Impairment of ability to practice according to acceptable and prevailing standards of care because of habitual or excessive use or abuse of drugs, alcohol, or other substances that impair ability to practice.
For the purposes of this division, any individual authorized to practice by this chapter accepts the privilege of practicing in this state subject to supervision by the board. By filing an application for or holding a license or certificate to practice under this chapter, an individual shall be deemed to have given consent to submit to a mental or physical examination when ordered to do so by the board in writing, and to have waived all objections to the admissibility of testimony or examination reports that constitute privileged communications.
If it has reason to believe that any individual authorized to practice by this chapter or any

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applicant for licensure or certification to practice suffers such impairment, the board may compel the individual to submit to a mental or physical examination, or both. The expense of the examination is the responsibility of the individual compelled to be examined. Any mental or physical examination required under this division shall be undertaken by a treatment provider or physician who is qualified to conduct the examination and who is chosen by the board.
Failure to submit to a mental or physical examination ordered by the board constitutes an admission of the allegations against the individual unless the failure is due to circumstances beyond the individual's control, and a default and final order may be entered without the taking of testimony or presentation of evidence. If the board determines that the individual's ability to practice is impaired, the board shall suspend the individual's license or certificate or deny the individual's application and shall require the individual, as a condition for initial, continued, reinstated, or renewed licensure or certification to practice, to submit to treatment.
Before being eligible to apply for reinstatement of a license or certificate suspended under this division, the impaired practitioner shall demonstrate to the board the ability to resume practice in compliance with acceptable and prevailing standards of care under the provisions of the practitioner's license or certificate. The demonstration shall include, but shall not be limited to, the following:
(a) Certification from a treatment provider approved under section 4731.25 of the Revised Code that the individual has successfully completed any required inpatient treatment;
(b) Evidence of continuing full compliance with an aftercare contract or consent agreement; (c) Two written reports indicating that the individual's ability to practice has been assessed and that the individual has been found capable of practicing according to acceptable and prevailing standards of care. The reports shall be made by individuals or providers approved by the board for making the assessments and shall describe the basis for their determination. The board may reinstate a license or certificate suspended under this division after that demonstration and after the individual has entered into a written consent agreement. When the impaired practitioner resumes practice, the board shall require continued monitoring of the individual. The monitoring shall include, but not be limited to, compliance with the written consent agreement entered into before reinstatement or with conditions imposed by board order after a hearing, and, upon termination of the consent agreement, submission to the board for at least two years of annual written progress reports made under penalty of perjury stating whether the individual has maintained sobriety. (27) A second or subsequent violation of section 4731.66 or 4731.69 of the Revised Code; (28) Except as provided in division (N) of this section: (a) Waiving the payment of all or any part of a deductible or copayment that a patient, pursuant to a health insurance or health care policy, contract, or plan that covers the individual's services, otherwise would be required to pay if the waiver is used as an enticement to a patient or group of patients to receive health care services from that individual; (b) Advertising that the individual will waive the payment of all or any part of a deductible or copayment that a patient, pursuant to a health insurance or health care policy, contract, or plan that covers the individual's services, otherwise would be required to pay. (29) Failure to use universal blood and body fluid precautions established by rules adopted under section 4731.051 of the Revised Code;

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(30) Failure to provide notice to, and receive acknowledgment of the notice from, a patient when required by section 4731.143 of the Revised Code prior to providing nonemergency professional services, or failure to maintain that notice in the patient's medical record;
(31) Failure of a physician supervising a physician assistant to maintain supervision in accordance with the requirements of Chapter 4730. of the Revised Code and the rules adopted under that chapter;
(32) Failure of a physician or podiatrist to enter into a standard care arrangement with a clinical nurse specialist, certified nurse-midwife, or certified nurse practitioner with whom the physician or podiatrist is in collaboration pursuant to section 4731.27 of the Revised Code or failure to fulfill the responsibilities of collaboration after entering into a standard care arrangement;
(33) Failure to comply with the terms of a consult agreement entered into with a pharmacist pursuant to section 4729.39 of the Revised Code;
(34) Failure to cooperate in an investigation conducted by the board under division (F) of this section, including failure to comply with a subpoena or order issued by the board or failure to answer truthfully a question presented by the board in an investigative interview, an investigative office conference, at a deposition, or in written interrogatories, except that failure to cooperate with an investigation shall not constitute grounds for discipline under this section if a court of competent jurisdiction has issued an order that either quashes a subpoena or permits the individual to withhold the testimony or evidence in issue;
(35) Failure to supervise an oriental medicine practitioner or acupuncturist in accordance with Chapter 4762. of the Revised Code and the board's rules for providing that supervision;
(36) Failure to supervise an anesthesiologist assistant in accordance with Chapter 4760. of the Revised Code and the board's rules for supervision of an anesthesiologist assistant;
(37) Assisting suicide, as defined in section 3795.01 of the Revised Code; (38) Failure to comply with the requirements of section 2317.561 of the Revised Code; (39) Failure to supervise a radiologist assistant in accordance with Chapter 4774. of the Revised Code and the board's rules for supervision of radiologist assistants; (40) Performing or inducing an abortion at an office or facility with knowledge that the office or facility fails to post the notice required under section 3701.791 of the Revised Code; (41) Failure to comply with the standards and procedures established in rules under section 4731.054 of the Revised Code for the operation of or the provision of care at a pain management clinic; (42) Failure to comply with the standards and procedures established in rules under section 4731.054 of the Revised Code for providing supervision, direction, and control of individuals at a pain management clinic; (43) Failure to comply with the requirements of section 4729.79 or 4731.055 of the Revised Code, unless the state board of pharmacy no longer maintains a drug database pursuant to section 4729.75 of the Revised Code; (44) Failure to comply with the requirements of section 2919.171, 2919.202, or 2919.203 of the Revised Code or failure to submit to the department of health in accordance with a court order a complete report as described in section 2919.171 or 2919.202 of the Revised Code; (45) Practicing at a facility that is subject to licensure as a category III terminal distributor of

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dangerous drugs with a pain management clinic classification unless the person operating the facility has obtained and maintains the license with the classification;
(46) Owning a facility that is subject to licensure as a category III terminal distributor of dangerous drugs with a pain management clinic classification unless the facility is licensed with the classification;
(47) Failure to comply with any of the requirement requirements regarding making or maintaining notes medical records or documents described in division (B) (A) of section 2919.191 2919.192, division (C) of section 2919.193, division (B) of section 2919.195, or division (A) of section 2919.196 of the Revised Code or failure to satisfy the requirements of section 2919.191 of the Revised Code prior to performing or inducing an abortion upon a pregnant woman;
(48) Failure to comply with the requirements in section 3719.061 of the Revised Code before issuing for a minor a prescription for an opioid analgesic, as defined in section 3719.01 of the Revised Code;
(49) Failure to comply with the requirements of section 4731.30 of the Revised Code or rules adopted under section 4731.301 of the Revised Code when recommending treatment with medical marijuana;
(50) Practicing at a facility, clinic, or other location that is subject to licensure as a category III terminal distributor of dangerous drugs with an office-based opioid treatment classification unless the person operating that place has obtained and maintains the license with the classification;
(51) Owning a facility, clinic, or other location that is subject to licensure as a category III terminal distributor of dangerous drugs with an office-based opioid treatment classification unless that place is licensed with the classification;
(52) A pattern of continuous or repeated violations of division (E)(2) or (3) of section 3963.02 of the Revised Code.
(C) Disciplinary actions taken by the board under divisions (A) and (B) of this section shall be taken pursuant to an adjudication under Chapter 119. of the Revised Code, except that in lieu of an adjudication, the board may enter into a consent agreement with an individual to resolve an allegation of a violation of this chapter or any rule adopted under it. A consent agreement, when ratified by an affirmative vote of not fewer than six members of the board, shall constitute the findings and order of the board with respect to the matter addressed in the agreement. If the board refuses to ratify a consent agreement, the admissions and findings contained in the consent agreement shall be of no force or effect.
A telephone conference call may be utilized for ratification of a consent agreement that revokes or suspends an individual's license or certificate to practice or certificate to recommend. The telephone conference call shall be considered a special meeting under division (F) of section 121.22 of the Revised Code.
If the board takes disciplinary action against an individual under division (B) of this section for a second or subsequent plea of guilty to, or judicial finding of guilt of, a violation of section 2919.123 of the Revised Code, the disciplinary action shall consist of a suspension of the individual's license or certificate to practice for a period of at least one year or, if determined appropriate by the board, a more serious sanction involving the individual's license or certificate to practice. Any consent agreement entered into under this division with an individual that pertains to a second or

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subsequent plea of guilty to, or judicial finding of guilt of, a violation of that section shall provide for a suspension of the individual's license or certificate to practice for a period of at least one year or, if determined appropriate by the board, a more serious sanction involving the individual's license or certificate to practice.
(D) For purposes of divisions (B)(10), (12), and (14) of this section, the commission of the act may be established by a finding by the board, pursuant to an adjudication under Chapter 119. of the Revised Code, that the individual committed the act. The board does not have jurisdiction under those divisions if the trial court renders a final judgment in the individual's favor and that judgment is based upon an adjudication on the merits. The board has jurisdiction under those divisions if the trial court issues an order of dismissal upon technical or procedural grounds.
(E) The sealing of conviction records by any court shall have no effect upon a prior board order entered under this section or upon the board's jurisdiction to take action under this section if, based upon a plea of guilty, a judicial finding of guilt, or a judicial finding of eligibility for intervention in lieu of conviction, the board issued a notice of opportunity for a hearing prior to the court's order to seal the records. The board shall not be required to seal, destroy, redact, or otherwise modify its records to reflect the court's sealing of conviction records.
(F)(1) The board shall investigate evidence that appears to show that a person has violated any provision of this chapter or any rule adopted under it. Any person may report to the board in a signed writing any information that the person may have that appears to show a violation of any provision of this chapter or any rule adopted under it. In the absence of bad faith, any person who reports information of that nature or who testifies before the board in any adjudication conducted under Chapter 119. of the Revised Code shall not be liable in damages in a civil action as a result of the report or testimony. Each complaint or allegation of a violation received by the board shall be assigned a case number and shall be recorded by the board.
(2) Investigations of alleged violations of this chapter or any rule adopted under it shall be supervised by the supervising member elected by the board in accordance with section 4731.02 of the Revised Code and by the secretary as provided in section 4731.39 of the Revised Code. The president may designate another member of the board to supervise the investigation in place of the supervising member. No member of the board who supervises the investigation of a case shall participate in further adjudication of the case.
(3) In investigating a possible violation of this chapter or any rule adopted under this chapter, or in conducting an inspection under division (E) of section 4731.054 of the Revised Code, the board may question witnesses, conduct interviews, administer oaths, order the taking of depositions, inspect and copy any books, accounts, papers, records, or documents, issue subpoenas, and compel the attendance of witnesses and production of books, accounts, papers, records, documents, and testimony, except that a subpoena for patient record information shall not be issued without consultation with the attorney general's office and approval of the secretary and supervising member of the board.
(a) Before issuance of a subpoena for patient record information, the secretary and supervising member shall determine whether there is probable cause to believe that the complaint filed alleges a violation of this chapter or any rule adopted under it and that the records sought are relevant to the alleged violation and material to the investigation. The subpoena may apply only to

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records that cover a reasonable period of time surrounding the alleged violation. (b) On failure to comply with any subpoena issued by the board and after reasonable notice to
the person being subpoenaed, the board may move for an order compelling the production of persons or records pursuant to the Rules of Civil Procedure.
(c) A subpoena issued by the board may be served by a sheriff, the sheriff's deputy, or a board employee or agent designated by the board. Service of a subpoena issued by the board may be made by delivering a copy of the subpoena to the person named therein, reading it to the person, or leaving it at the person's usual place of residence, usual place of business, or address on file with the board. When serving a subpoena to an applicant for or the holder of a license or certificate issued under this chapter, service of the subpoena may be made by certified mail, return receipt requested, and the subpoena shall be deemed served on the date delivery is made or the date the person refuses to accept delivery. If the person being served refuses to accept the subpoena or is not located, service may be made to an attorney who notifies the board that the attorney is representing the person.
(d) A sheriff's deputy who serves a subpoena shall receive the same fees as a sheriff. Each witness who appears before the board in obedience to a subpoena shall receive the fees and mileage provided for under section 119.094 of the Revised Code.
(4) All hearings, investigations, and inspections of the board shall be considered civil actions for the purposes of section 2305.252 of the Revised Code.
(5) A report required to be submitted to the board under this chapter, a complaint, or information received by the board pursuant to an investigation or pursuant to an inspection under division (E) of section 4731.054 of the Revised Code is confidential and not subject to discovery in any civil action.
The board shall conduct all investigations or inspections and proceedings in a manner that protects the confidentiality of patients and persons who file complaints with the board. The board shall not make public the names or any other identifying information about patients or complainants unless proper consent is given or, in the case of a patient, a waiver of the patient privilege exists under division (B) of section 2317.02 of the Revised Code, except that consent or a waiver of that nature is not required if the board possesses reliable and substantial evidence that no bona fide physician-patient relationship exists.
The board may share any information it receives pursuant to an investigation or inspection, including patient records and patient record information, with law enforcement agencies, other licensing boards, and other governmental agencies that are prosecuting, adjudicating, or investigating alleged violations of statutes or administrative rules. An agency or board that receives the information shall comply with the same requirements regarding confidentiality as those with which the state medical board must comply, notwithstanding any conflicting provision of the Revised Code or procedure of the agency or board that applies when it is dealing with other information in its possession. In a judicial proceeding, the information may be admitted into evidence only in accordance with the Rules of Evidence, but the court shall require that appropriate measures are taken to ensure that confidentiality is maintained with respect to any part of the information that contains names or other identifying information about patients or complainants whose confidentiality was protected by the state medical board when the information was in the board's possession. Measures to ensure confidentiality that may be taken by the court include sealing its records or

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deleting specific information from its records. (6) On a quarterly basis, the board shall prepare a report that documents the disposition of all
cases during the preceding three months. The report shall contain the following information for each case with which the board has completed its activities:
(a) The case number assigned to the complaint or alleged violation; (b) The type of license or certificate to practice, if any, held by the individual against whom the complaint is directed; (c) A description of the allegations contained in the complaint; (d) The disposition of the case. The report shall state how many cases are still pending and shall be prepared in a manner that protects the identity of each person involved in each case. The report shall be a public record under section 149.43 of the Revised Code. (G) If the secretary and supervising member determine both of the following, they may recommend that the board suspend an individual's license or certificate to practice or certificate to recommend without a prior hearing: (1) That there is clear and convincing evidence that an individual has violated division (B) of this section; (2) That the individual's continued practice presents a danger of immediate and serious harm to the public. Written allegations shall be prepared for consideration by the board. The board, upon review of those allegations and by an affirmative vote of not fewer than six of its members, excluding the secretary and supervising member, may suspend a license or certificate without a prior hearing. A telephone conference call may be utilized for reviewing the allegations and taking the vote on the summary suspension. The board shall issue a written order of suspension by certified mail or in person in accordance with section 119.07 of the Revised Code. The order shall not be subject to suspension by the court during pendency of any appeal filed under section 119.12 of the Revised Code. If the individual subject to the summary suspension requests an adjudicatory hearing by the board, the date set for the hearing shall be within fifteen days, but not earlier than seven days, after the individual requests the hearing, unless otherwise agreed to by both the board and the individual. Any summary suspension imposed under this division shall remain in effect, unless reversed on appeal, until a final adjudicative order issued by the board pursuant to this section and Chapter 119. of the Revised Code becomes effective. The board shall issue its final adjudicative order within seventy-five days after completion of its hearing. A failure to issue the order within seventy-five days shall result in dissolution of the summary suspension order but shall not invalidate any subsequent, final adjudicative order. (H) If the board takes action under division (B)(9), (11), or (13) of this section and the judicial finding of guilt, guilty plea, or judicial finding of eligibility for intervention in lieu of conviction is overturned on appeal, upon exhaustion of the criminal appeal, a petition for reconsideration of the order may be filed with the board along with appropriate court documents. Upon receipt of a petition of that nature and supporting court documents, the board shall reinstate the individual's license or certificate to practice. The board may then hold an adjudication under Chapter

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119. of the Revised Code to determine whether the individual committed the act in question. Notice of an opportunity for a hearing shall be given in accordance with Chapter 119. of the Revised Code. If the board finds, pursuant to an adjudication held under this division, that the individual committed the act or if no hearing is requested, the board may order any of the sanctions identified under division (B) of this section.
(I) The license or certificate to practice issued to an individual under this chapter and the individual's practice in this state are automatically suspended as of the date of the individual's second or subsequent plea of guilty to, or judicial finding of guilt of, a violation of section 2919.123 of the Revised Code. In addition, the license or certificate to practice or certificate to recommend issued to an individual under this chapter and the individual's practice in this state are automatically suspended as of the date the individual pleads guilty to, is found by a judge or jury to be guilty of, or is subject to a judicial finding of eligibility for intervention in lieu of conviction in this state or treatment or intervention in lieu of conviction in another jurisdiction for any of the following criminal offenses in this state or a substantially equivalent criminal offense in another jurisdiction: aggravated murder, murder, voluntary manslaughter, felonious assault, kidnapping, rape, sexual battery, gross sexual imposition, aggravated arson, aggravated robbery, or aggravated burglary. Continued practice after suspension shall be considered practicing without a license or certificate.
The board shall notify the individual subject to the suspension by certified mail or in person in accordance with section 119.07 of the Revised Code. If an individual whose license or certificate is automatically suspended under this division fails to make a timely request for an adjudication under Chapter 119. of the Revised Code, the board shall do whichever of the following is applicable:
(1) If the automatic suspension under this division is for a second or subsequent plea of guilty to, or judicial finding of guilt of, a violation of section 2919.123 of the Revised Code, the board shall enter an order suspending the individual's license or certificate to practice for a period of at least one year or, if determined appropriate by the board, imposing a more serious sanction involving the individual's license or certificate to practice.
(2) In all circumstances in which division (I)(1) of this section does not apply, enter a final order permanently revoking the individual's license or certificate to practice.
(J) If the board is required by Chapter 119. of the Revised Code to give notice of an opportunity for a hearing and if the individual subject to the notice does not timely request a hearing in accordance with section 119.07 of the Revised Code, the board is not required to hold a hearing, but may adopt, by an affirmative vote of not fewer than six of its members, a final order that contains the board's findings. In that final order, the board may order any of the sanctions identified under division (A) or (B) of this section.
(K) Any action taken by the board under division (B) of this section resulting in a suspension from practice shall be accompanied by a written statement of the conditions under which the individual's license or certificate to practice may be reinstated. The board shall adopt rules governing conditions to be imposed for reinstatement. Reinstatement of a license or certificate suspended pursuant to division (B) of this section requires an affirmative vote of not fewer than six members of the board.
(L) When the board refuses to grant or issue a license or certificate to practice to an applicant, revokes an individual's license or certificate to practice, refuses to renew an individual's license or

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certificate to practice, or refuses to reinstate an individual's license or certificate to practice, the board may specify that its action is permanent. An individual subject to a permanent action taken by the board is forever thereafter ineligible to hold a license or certificate to practice and the board shall not accept an application for reinstatement of the license or certificate or for issuance of a new license or certificate.
(M) Notwithstanding any other provision of the Revised Code, all of the following apply: (1) The surrender of a license or certificate issued under this chapter shall not be effective unless or until accepted by the board. A telephone conference call may be utilized for acceptance of the surrender of an individual's license or certificate to practice. The telephone conference call shall be considered a special meeting under division (F) of section 121.22 of the Revised Code. Reinstatement of a license or certificate surrendered to the board requires an affirmative vote of not fewer than six members of the board. (2) An application for a license or certificate made under the provisions of this chapter may not be withdrawn without approval of the board. (3) Failure by an individual to renew a license or certificate to practice in accordance with this chapter or a certificate to recommend in accordance with rules adopted under section 4731.301 of the Revised Code shall not remove or limit the board's jurisdiction to take any disciplinary action under this section against the individual. (4) At the request of the board, a license or certificate holder shall immediately surrender to the board a license or certificate that the board has suspended, revoked, or permanently revoked. (N) Sanctions shall not be imposed under division (B)(28) of this section against any person who waives deductibles and copayments as follows: (1) In compliance with the health benefit plan that expressly allows such a practice. Waiver of the deductibles or copayments shall be made only with the full knowledge and consent of the plan purchaser, payer, and third-party administrator. Documentation of the consent shall be made available to the board upon request. (2) For professional services rendered to any other person authorized to practice pursuant to this chapter, to the extent allowed by this chapter and rules adopted by the board. (O) Under the board's investigative duties described in this section and subject to division (F) of this section, the board shall develop and implement a quality intervention program designed to improve through remedial education the clinical and communication skills of individuals authorized under this chapter to practice medicine and surgery, osteopathic medicine and surgery, and podiatric medicine and surgery. In developing and implementing the quality intervention program, the board may do all of the following: (1) Offer in appropriate cases as determined by the board an educational and assessment program pursuant to an investigation the board conducts under this section; (2) Select providers of educational and assessment services, including a quality intervention program panel of case reviewers; (3) Make referrals to educational and assessment service providers and approve individual educational programs recommended by those providers. The board shall monitor the progress of each individual undertaking a recommended individual educational program. (4) Determine what constitutes successful completion of an individual educational program

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and require further monitoring of the individual who completed the program or other action that the board determines to be appropriate;
(5) Adopt rules in accordance with Chapter 119. of the Revised Code to further implement the quality intervention program.
An individual who participates in an individual educational program pursuant to this division shall pay the financial obligations arising from that educational program.
Sec. 5103.11. There is hereby created the foster care and adoption initiatives fund. The fund shall be in the custody of the treasurer of state, but shall not be part of the state treasury. The fund shall consist of moneys collected under section 2919.1912 of the Revised Code. All interest earned on the fund shall be credited to the fund. The purpose of the fund is to provide funding for foster care and adoption services and initiatives. The department of job and family services shall allocate moneys from the fund according to the following distribution:
(A) Fifty per cent of the moneys in the fund shall be used for foster care services and initiatives.
(B) Fifty per cent of the moneys in the fund shall be used for adoption services and initiatives.

SECTION 2. That existing sections 2317.56, 2919.171, 2919.19, 2919.191, 2919.192, 2919.193, and 4731.22 of the Revised Code are hereby repealed.

SECTION 3. The General Assembly hereby declares that it finds, according to contemporary medical research, all of the following:
(A) As many as thirty per cent of natural pregnancies end in spontaneous miscarriage. (B) Less than five per cent of all natural pregnancies end in spontaneous miscarriage after detection of fetal cardiac activity. (C) Over ninety per cent of in vitro pregnancies survive the first trimester if cardiac activity is detected in the gestational sac. (D) Nearly ninety per cent of in vitro pregnancies do not survive the first trimester where cardiac activity is not detected in the gestational sac. (E) Fetal heartbeat, therefore, has become a key medical predictor that an unborn human individual will reach live birth. (F) Cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac. (G) The State of Ohio has a valid interest in protecting the health of the woman. The State of Ohio has a compelling interest in protecting the life of an unborn human individual who may be born. (H) In order to make an informed choice about whether to continue her pregnancy, the pregnant woman has a valid interest in knowing the likelihood of the fetus surviving to full-term birth based upon the presence of cardiac activity. (I) The State of Ohio finds that the detection of a fetal heartbeat can be accomplished through standard medical practices.

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(J) At fertilization, a human being emerges as a whole, genetically distinct, living human organism and needs only the proper environment to fully develop into a human.
(K) Cardiac activity shows that tissues have come together to form organs and the developing central nervous system signals the heart to autonomically beat.
(L) When a heartbeat is visualized at seven weeks or less, ninety-one and one-half per cent will survive the first trimester and ninety-five per cent of those will deliver live- born infants.
(M) After the detection of a fetal heartbeat there is a ninety-five to ninety-eight per cent certainty that the new life will develop full term.
(N) A human being at an embryonic age and a human being at an adult age are naturally the same, with the only biological differences being due to the differences in maturity.

SECTION 4. If any provisions of a section as amended or enacted by this act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable.

SECTION 5. Section 4731.22 of the Revised Code is presented in this act as a composite of the section as amended by both Am. Sub. H.B. 111 and Sub. H.B. 156 of the 132nd General Assembly. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the composite is the resulting version of the section in effect prior to the effective date of the section as presented in this act.

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Speaker ___________________ of the House of Representatives.
President ___________________ of the Senate. Passed ________________________, 20____ Approved ________________________, 20____
Governor.

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The section numbering of law of a general and permanent nature is complete and in conformity with the Revised Code.

Director, Legislative Service Commission.
Filed in the office of the Secretary of State at Columbus, Ohio, on the ____ day of ___________, A. D. 20____.

Secretary of State.

File No. _________

Effective Date ___________________

 
 Case: 1:19-cv-00360-MRB Doc #: 29 Filed: 07/03/19 Page: 1 of 12 PAGEID #: 186

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Preterm-Cleveland, et al., Plaintiffs, vs.
David Yost, et al., Defendants.

) ) ) Case No.: 1:19-cv-00360 ) ) Judge Michael R. Barrett ) ) ) ) ) )

ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

On May 15, 2019, Plaintiffs Preterm-Cleveland, Planned Parenthood Southwest

Ohio Region, Sharon Liner, M.D., Planned Parenthood of Greater Ohio, Women’s Med

Group Professional Corporation, and Capital Care Network of Toledo (collectively,

“Plaintiffs”) filed a Verified Complaint challenging the constitutionality of Ohio Senate Bill

23 of the 133rd General Assembly. (Doc. 1). With their Verified Complaint, Plaintiffs

filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction. (Doc.

2). During the informal conference held on May 20, 2019 pursuant to S.D. Ohio Civ. R.

65.1, Plaintiffs advised the Court of their preference for a ruling only on their Motion for

Preliminary Injunction (and not their Motion for a Temporary Restraining Order) in light

of the July 11, 2019 effective date of the statute. Plaintiffs and the Ohio Attorney

General agreed that there was no need for discovery or an evidentiary hearing. They

established a briefing schedule, and asked that the Court render its decision by July 5,

2019 based on the memoranda alone. This Order follows.

1

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I. BACKGROUND A. Statutory Framework Giving Rise to Plaintiffs’ Complaint
The Ohio General Assembly passed Senate Bill 23 (“S.B. 23” or the “Act”), also known as the “Heartbeat Protection Act,” on April 10, 2019. Governor Mike DeWine signed the bill into law the next day, April 11, 2019. It is set to go into effect on July 11, 2019. Ohio law already requires an abortion provider to first determine whether there is detectable cardiac activity.1 Once in effect, the Act will make it a crime to “caus[e] or abet[] the termination of” the pregnancy. S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(A).
The Act has two exceptions. S.B. 23 allows abortion care after cardiac activity is detected only if the abortion is necessary to prevent the patient’s death or “a serious risk of the substantial and irreversible impairment of a major bodily function.” S.B. 23, § 1, amending Ohio Rev. Code § 2919.195(B). “‘Serious risk of substantial and irreversible impairment of a major bodily function’ means any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function,” which “includes preeclampsia, inevitable abortion, and premature rupture of the membranes[ and] may include, but is not limited to, diabetes and multiple sclerosis[ but] does not include a condition related to the woman’s mental health.” Ohio Revised Code § 2919.16(K).
1 As currently written, the statute provides: “The person who determines the presence or absence of a fetal heartbeat shall record in the pregnant woman’s medical record the estimated gestational age of the unborn human individual, the method used to test for a fetal heartbeat, the date and time of the test, and the results of the test.” Ohio Rev. Code § 2919.191(A). In addition, “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.” Id. § 2919.191(C).
2

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A violation of the Act is a fifth-degree felony, punishable by up to one year in prison and a fine of $2,500. S.B. 23 § 1, amending Ohio Rev. Cod. § 2919.195(A); Ohio Rev. Code §§ 2929.14(A)(5), 2929.18(A)(3)(e). The state medical board may assess a forfeiture of up to $20,000 for each violation of the Act, S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(A), and limit, revoke, or suspend a physician’s medical license based on a violation of the Act, see Ohio Rev. Code § 4371.22(B)(10). A patient also may bring a civil action against a provider who violates the Act and recover damages in the amount of $10,000 or more. S.B. 23 § 1, amending Ohio Rev. Code § 2919.199 (B)(1).
B. Plaintiffs’ Verified Complaint
In a nutshell, S.B. 23 bans abortion care at and after approximately six weeks in pregnancy. And, in so doing, according to Plaintiffs—a collection of reproductive health care clinics and physicians providing abortion care—violates a woman’s right to privacy as guaranteed by the Fourteenth Amendment.
In a normally developing embryo, cells that form the basis for development of the heart later in gestation produce activity that can be detected with ultrasound. (Doc. 1 ¶ 30 at PageID 10). Consistent with common medical practice, as well as existing law, see Ohio Rev. Code § 2919.191(A), Plaintiffs perform an ultrasound to date the pregnancy and to determine whether there is any detectable cardiac activity. (Id. ¶ 31). An ultrasound can be performed in one of two ways: either by placing a transducer on the patient’s abdomen or by inserting a probe into the patient’s vagina. (Id.). Many abortion providers, including those at the clinics that are Plaintiffs in this civil action, use vaginal ultrasound to confirm and date early pregnancy. (Id.). Using vaginal
3

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ultrasound, cardiac activity generally is detectable at approximately six weeks in pregnancy, or six weeks LMP.2 (Id. ¶ 32 at PageID 11). At six weeks LMP, an embryo3 is not capable of surviving outside the womb. (Id. ¶ 34). In other words, it is a previability point in pregnancy. (Id.).
At six weeks LMP, many women are unaware that they are pregnant. (Id. ¶ 36). Typically the menstrual cycle is approximately four weeks long, but varies based on the individual. (Id.). Assuming a woman has consistently regular periods, she would be considered four weeks pregnant as measured from her LMP when her missed period occurs. (Id.). Those who have irregular periods—caused by common medical conditions, contraceptive use, age or breastfeeding—or those who experience bleeding during early pregnancy that could be mistaken for a period may not even realize that they missed a period. (Id. ¶¶ 37–39 at PageID 11–12). But assuming a patient does know that she is pregnant, there are certain logistical obstacles to obtaining abortion care before six weeks in pregnancy. (Id. ¶ 40 at PageID 12). She will need to schedule an appointment, make sure of payment,4 and arrange for transportation, time off of work and possibly childcare5 during appointments. (Id. ¶ 42). A minor patient, unless emancipated, also must obtain written parental consent or a court order. (Id. ¶ 43; Ohio Rev. Code § 2919.121). And all patients, regardless of age, must make two in-person
2 Pregnancy is measured from the first day of the patient’s last menstrual period (“LMP”). (Doc. 1 ¶ 35 at PageID 11). A full-term pregnancy is approximately 40 weeks LMP. (Id.). 3 The embryonic stage of pregnancy lasts from fertilization until approximately eight-to-ten weeks LMP. (Doc. 1 ¶ 31 at PageID 10 n.4). The embryo becomes a fetus at about 11 weeks LMP. (Id.). 4 Ohio law prohibits public insurance, including Medicaid, and insurance purchased on the state exchange from covering abortion care except when a patient’s physical health or life is at risk or when the pregnancy is the result of rape or incest and that rape or incest has been reported to law enforcement. Ohio Rev. Code §§ 9.04, 3901.87; Ohio Admin. Code § 5160-17-01. 5 A majority (61%) of those patients having abortions already have at least one child. (Doc. 1 ¶ 47 at PageID 13).
4

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trips—at least 24 hours apart—to the clinic before they can obtain an abortion. (Doc. 1 ¶¶ 41, 43 at PageID 12; Ohio Rev. Code § 2317.56). These reasons explain why the vast majority of abortions in Ohio—approximately 90%—take place at or after six weeks LMP. (Doc. 1 ¶44 at PageID 13). S.B. 23, therefore, will prohibit almost all abortion care in Ohio. (Id. ¶ 45).
II. ANALYSIS As final relief, Plaintiffs seek an Order from this Court declaring the Act
unconstitutional, and a permanent injunction barring its enforcement. The purpose of a preliminary injunction is to preserve the status quo prior to entry of the final order. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). In considering a preliminary injunction, the court considers four elements: "(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction." City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (citations omitted). “These four considerations are factors to be balanced, not prerequisites that must be met.” Kessler v. Hrivnak, No. 3:11-cv-35, 2011 WL 2144599, at *3 (S. D. Ohio May 31, 2011). "Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal." Id. (citation omitted)
5

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A. Likelihood of Success
The Court concludes, based on current United States Supreme Court precedent, that Plaintiffs are certain to succeed on the merits of their claim that S.B. 23 is unconstitutional on its face.
The law is well-settled that women possess a fundamental constitutional right of access to abortions. Roe v. Wade, 410 U.S. 113, 153-54 (1973). Yet the right to terminate a pregnancy is not absolute: “[A] state may regulate abortion before viability as long as it does not impose an ‘undue burden’ on a woman’s right to terminate her pregnancy.” Women’s Med. Prof’l Corp. v. Taft, 353 F.3d 436, 443 (6th Cir. 2003) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 876 (1992) (emphasis added)). The undue burden test recently was summarized by the Supreme Court as follows: “[T]here ‘exists’ an ‘undue burden’ on a woman's right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016) (quoting Casey, 505 U.S. at 878 (emphasis added in Hellerstedt)). As with the majority of other circuits, the Sixth Circuit follows Casey’s “large-fraction test” when considering facial attacks on abortion regulations. Cincinnati Women’s Servs. v. Taft, 468 F.3d 361, 367 (6th Cir. 2006). Accordingly, Plaintiffs must show that, “in a large fraction of the cases in which [the abortion restriction] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Id. (quoting Casey, 505 U.S. at 895). Plaintiffs’ 90% statistic— which Defendants do not challenge—amply suffices. S.B 23, as its sponsors intended,
6

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will have the effect of preventing nearly all abortions in Ohio. A woman with highly regular periods would have only two weeks, at most, “to learn that she is pregnant, decide whether to have an abortion, and seek and obtain abortion care.” (Doc. 2 at PageID 58). A woman with irregular periods likely will be denied the opportunity to seek an abortion altogether because she will not realize that she is pregnant in time to choose her fate. One could characterize the obstacle Ohio women will face as not merely “substantial,” but, rather, “insurmountable.” See Preterm-Cleveland v. Himes, 294 F. Supp. 3d 746, 754 (S.D. Ohio 2018), appeal docketed, No. 18-3329 (6th Cir. Apr. 12, 2018). As a matter of law, therefore, Casey dictates a finding in Plaintiffs’ favor on the likelihood of success on the merits. To their credit, Defendants concede this point. (Doc. 17 at PageID 104 (“This Court’s decision on Plaintiffs’ motion for preliminary injunction is likely controlled by decisions in other abortion-related cases that apply a judicially created constitutional construct: viability. To the extent the Heartbeat Protection Act conflicts with existing viability precedent, such precedent controls.”); at PageID 107 (“To the extent that this Court finds that there exists a conflict between the Act and Casey, it will inevitably conclude that, as a matter of law, Casey controls.”); at PageID 111 (“[A]t the preliminary injunction phase this Court is bound by Casey.”); and at PageID 112 (“[T]his Court is likely bound by Casey.”)).
Plaintiffs cite a number of cases in which attempts to ban abortion prior to viability have been rejected. See, e.g., Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015) (finding unconstitutional Arizona Human Heartbeat Protection Act prohibiting abortion starting at 12 weeks), cert. denied, 136 S. Ct. 895 (2016); Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013) (finding unconstitutional Arizona statute forbidding abortion starting
7

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at 20 weeks), cert. denied, 134 S. Ct. 905 (2014); Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536 (S.D. Miss. 2018) (finding unconstitutional Mississippi statute forbidding abortion starting at greater than 15 weeks), appeal docketed sub nom. Jackson Women’s Health Org. v. Dobbs, No. 18-60868 (5th Cir. Dec. 17, 2018). And, thus far, all other attempts by states to ban abortion beginning at the detection of cardiac activity have been invalidated. MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772–73 (8th Cir. 2015) (North Dakota), cert. denied, 136 S. Ct. 981 (2016); Jackson Women’s Health Org., v. Dobbs, --- F. Supp. 3d ---, No. 3:18-cv-171-CWR-FKB, 2019 WL 2240532 (S.D. Miss. May 24, 2019) (Mississippi), appeal docketed, No. 19-60455 (5th Cir. June 24, 2019); Planned Parenthood of the Heartland, Inc. v. Reynolds, No. EQCE83074, 2019 WL 312072 (Iowa Dist. Jan. 22, 2019) (Iowa).
In response, Defendants argue that Casey’s viability “construct” is flawed because of the ongoing advancement of medical technology. (Doc. 17 at PageID 108). A “blanket approach to viability” fails to account for advancements regarding “the point at which fetal cardiac activity, and fetal life can be protected,” and hence “falls far short of safeguarding the state’s interest in protecting life.” (Id.). Not so, say Plaintiffs, and this Court agrees. As noted in Casey:
We have seen how time has overtaken some of Roe’s factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, and advances in neonatal care have advanced viability to a point somewhat earlier. But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in
8

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no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today [in 1992], or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe’s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.
Casey, 505 U.S. at 860 (internal citations omitted) (emphasis added). And more to the
point regarding the question presented to this Court:
[T]he concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the right of the woman. Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw. And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention of behalf of the developing child.
The 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.
Id. at 870–71 (internal citations omitted) (emphasis added).
Defendants refer to testimony considered by the Ohio General Assembly in the
course of passing S.B. 23 to the effect that “it is unsupportable to consider all unborn
9

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children ‘viable’ at the exact same gestational point in time.” (Doc. 17 at PageID 109 (citing Doc. 17-6, Written Testimony of David F. Forte)). And “[d]octors hold varying opinions on when viability actually occurs, and a doctor’s estimate can have a high margin of error.” (Id.). Defendants offer no testimony, however, that viability exists at six weeks LMP.
This Court concludes that S.B. 23 places an “undue burden” on a woman’s right to choose a pre-viability abortion, and, under Casey, Plaintiffs are certain to succeed on the merits of their claim. To the extent that the State of Ohio “is making a deliberate effort to overturn Roe [v.Wade] and established constitutional precedent,” see Jackson Women’s Health, 349 F. Supp. 3d at 544, those arguments must be made to a higher court.
B. Irreparable Harm
Plaintiffs argue that their patients will suffer serious and irreparable harm in the absence of a preliminary injunction, because allowing the Act to take effect will prevent Ohio women from exercising their constitutional right to reproductive freedom as protected by the Fourteenth Amendment.6 “[A] plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights.” Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002); accord Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of [constitutional] freedoms . . . unquestionably constitutes irreparable injury.”).
6 While clinics and physicians do not possess a constitutional right to perform abortions, they have standing to assert constitutional challenges on behalf of their patients in the abortion context. See Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908 (6th Cir. 2019).
10

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Inasmuch as this Court has determined that S.B. 23 places an “undue burden” on a woman’s right to choose a pre-viability abortion, and thus violates her right to privacy guaranteed by the Fourteenth Amendment, we further determine that its enforcement would, per se, inflict irreparable harm. This second factor, then, weighs in favor of Plaintiffs.
C. Harm to Others Plaintiffs argue that, while their patients will suffer irreparable harm without an
injunction, Defendants will suffer no injury whatsoever. Plaintiffs are correct. To be sure, Casey acknowledged the State’s “legitimate interest from the outset of the pregnancy in protecting the . . . life of the fetus that may become a child.” Casey, 505 U.S. at 846. But that acknowledgement was preceded with the recognition that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the women’s effective right to elect the procedure.” Id. (emphasis added). An injunction will preserve the status quo that has been in place for more than 40 years since Roe was decided, and some 25 years since Casey followed. See Jackson Womens’ Health Org. v. Currier, 940 F. Supp. 2d 416, 424 (S.D. Miss. 2013). Whether the status quo will change upon appeal remains to be seen. The third factor, then, weighs in favor of Plaintiffs.
D. Public Interest “[T]he public interest is promoted by the robust enforcement of constitutional
rights,” Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 896 (6th Cir. 2012), and it is in the public’s interest to uphold those rights if
11

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they are being denied “absent medical or other legitimate concerns.” Doe v. Barron, 92 F. Supp. 2d 694, 697 (S.D. Ohio 1999).7 The fourth factor, then, weighs in favor of Plaintiffs.

III. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) is GRANTED. Specifically, all Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of this Order, are preliminarily enjoined from enforcing or complying with S.B. 23 pending further Order of this Court. Additionally, and consistent with the foregoing reasons, the Court waives the bond requirement set forth in Fed. R. Civ. P. 65(c). Molton Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (district court has discretion to issue preliminary injunction with no bond).

IT IS SO ORDERED.

s/ Michael R. Barrett Michael R. Barrett, Judge United States District Court

7 Defendants accurately quote Justice Rehnquist in New Motor Vehicle Bd. v. Orrin W. Fox. Co., 434 U.S. 1345, 1351 (1977) (“It also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”). A retail automobile dealer’s right to relocate as defined by state law, however, is hardly comparable to a woman’s right to choose as guaranteed by the United States Constitution.
12

 
 Case: 1:19-cv-00360-MRB Doc #: 39 Filed: 03/30/20 Page: 1 of 10 PAGEID #: 392

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

PRETERM-CLEVELAND, INC., et al.,

:

:

Plaintiffs,

:

Case No. 1:19-cv-00360

v.

:

:

DAVID YOST, et al.,

:

Judge Barrett

:

Defendants.

:

EXPEDITED MOTION TO FILE SUPPLEMENTAL COMPLAINT Plaintiffs Preterm-Cleveland, Planned Parenthood Southwest Ohio Region, Sharon Liner, M.D., Planned Parenthood of Greater Ohio, Women’s Med Group Professional Corporation, and Capital Care Network of Toledo move to file a supplemental complaint pursuant to Federal Rule of Civil Procedure 15(d).1 In light of Plaintiffs’ need for urgent relief, the Court should expedite its ruling on this motion. And as explained below, the Court should permit supplementation on an expedited basis because it would promote judicial economy and supplementation will not prejudice Defendants.
BACKGROUND As the Court is aware, this case challenges Ohio’s attempt to ban nearly all abortions. Specifically, this action challenges Ohio Senate Bill 23 (“S.B. 23”), which bans abortions after embryonic or fetal cardiac activity is detected except in extremely narrow circumstances. Verified Compl. for Declaratory & Injunctive Relief ¶¶ 27–28, Doc. 1. Cardiac activity is generally detectable with vaginal ultrasound beginning at approximately six weeks, zero days LMP. Id. ¶ 32. See generally Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796, 799 (S.D. Ohio 2019).

1 The proposed Supplement to the Verified Complaint is attached as Exhibit A, and redline version showing the changes is attached as Exhibit B.

Case: 1:19-cv-00360-MRB Doc #: 39 Filed: 03/30/20 Page: 2 of 10 PAGEID #: 393
This Court properly preliminarily enjoined S.B. 23’s enforcement, concluding that “based on current United States Supreme Court precedent, . . . Plaintiffs [were] certain to succeed on the merits of their claim that S.B. 23 is unconstitutional on its face.” Id. at 800, 804. The Court reasoned that S.B. 23 erected “not merely [a] ‘substantial,’ but, rather, [an] ‘insurmountable’” obstacle, and thus, “[a]s a matter of law,” the Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), “dictate[d] a finding in Plaintiffs’ favor on the likelihood of success on the merits.” Id. at 801. As the Court observed, the Supreme Court has long concluded that “‘[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the women’s effective right to elect the procedure.’” Id. at 803 (emphasis in original) (quoting Casey, 505 U.S. at 846).
Despite this Court’s injunction, the State is again attempting to ban abortions—this time starting at ten weeks LMP rather than six weeks. Since the Court’s preliminary injunction, Defendant Acton, the Director of the Ohio Department of Health (“ODH”), issued an order barring all “non-essential” surgeries and medical procedures in Ohio during the COVID-19 outbreak (“Director’s Order”),2 and ODH has threatened to apply that Order to ban nearly all surgical abortions. As a result, the Director’s Order amounts to a ban on abortion for all patients who are more than ten weeks pregnant (as well as a ban on abortion at earlier gestational points among patients for whom medication abortion cannot appropriately be used).
ARGUMENT Federal Rule of Civil Procedure 15(d) provides that a court “may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that
2 See Exhibit B to the Proposed Supplemental Complaint. 2

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happened after the date of the pleading to be supplemented.” Supplementation is appropriate when it “will promote the economic and speedy disposition of the entire controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the other parties to the action.” 6A Charles A. Wright & Arthur R. Miller et al., Federal Practice and Civil Procedure § 1504 (3d ed. 2016). It is also well established that a supplemental complaint may include “new claims, defenses, and parties to the lawsuit.” Mattox v. Edelman, 851 F.3d 583, 592 (6th Cir. 2017). The Sixth Circuit has a “liberal policy” in favor of supplemental pleadings. Id. at 592; see also McHenry v. Ford Motor Co., 269 F.2d 18, 25 (6th Cir. 1959) (noting that “applications for leave to serve a supplemental complaint are normally granted” and that “[t]he courts give [Rule 15(d)] a liberal construction”); Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 625 (6th Cir. 2016) (“Rule 15(d) aims to give the court broad discretion in allowing a supplemental pleading.” (internal quotation marks omitted)); Amos v. PPG Indus., Inc., No. 2:05-CV-70, 2017 WL 10438752, at *2 (S.D. Ohio Apr. 19, 2017) (Kemp, M.J.) (“A similar standard applies for Rule 15(d) as for Rule 15(a)(2), which states that when a party seeks leave of court in order to file an amended pleading, ‘[t]he court should freely give leave when justice so requires.’” (quoting Spies v. Voinovich, 48 Fed. App’x 520, 527 (6th Cir. 2002))).
This preference for supplementation under Rule 15(d) aims to serve judicial economy. See, e.g., Griffin v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 226 (1964) (“Such amendments [under Rule 15(d)] are well within the basic aim of the rules to make pleadings a means to achieve an orderly and fair administration of justice.”). Supplementation is so favored that “if [the] defendant does not show that he will be injured by the filing of such amendments, applications under Rule 15(d) are ‘normally granted.’” Amos, 2017 WL 10438752, at *2 (quoting
3

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McHenry, 269 F.2d at 25); see also Vernay Labs., Inc. v. Indus. Elec. Rubber Co., 234 F. Supp. 161, 167 (N.D. Ohio 1964); Hairston v. Bowerman, No. 3:19-CV-37, 2020 WL 1140068, at *3 (N.D. Ohio Mar. 9, 2020) (“The Federal Civil Rules embrace liberal pleading standards and, unless a proposed pleading would result in undue prejudice to the opposing party, has been unduly delayed, has not been offered in good faith, or would be futile, leave to amend should be granted.” (internal quotation marks omitted)).
In addition, “Rule 15(d) of the Federal Rules of Civil Procedure plainly permits supplemental amendments to cover events happening after suit, and it follows, of course, that persons participating in these new events may be added if necessary.” Griffin, 377 U.S. at 227; Ne. Ohio Coal. for the Homeless v. Husted, No. 2:06-CV-00896, 2015 WL 13034990, at *5 (S.D. Ohio Aug. 7, 2015), amended nunc pro tunc, No. 2:06-CV-896, 2016 WL 8223066 (S.D. Ohio Mar. 17, 2016) (Marbley, J.) (citing Griffin for the proposition that Rule 15(d) contemplates that supplemental factual allegations may give rise to new legal theories and new parties).
For good cause shown, the Court may consider an urgent motion early and expedite its ruling. S.D. Ohio Civ. Rule 7.1(b)(3); see also Tri Cty. Wholesale Distributors, Inc. v. Labatt USA Operating Co., LLC, No. 2:13-CV-317, 2013 WL 12180497, at *2 (S.D. Ohio Apr. 22, 2013) (stating that “[c]ourts considering motions to expedite typically apply a ‘good cause’ standard” and that “[g]ood cause is often found when there is a request for a preliminary injunction” (citation omitted)).
I. Supplementation Promotes Judicial Economy Granting this motion will further the interests underlying Rule 15(d) in multiple respects.
First, there is substantial legal and factual overlap between the claims asserted in the original
4

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Verified Complaint and the proposed Supplemental Complaint, and as a result of earlier proceedings in this case, the Court is familiar with the pertinent subject matter. In particular, both pleadings focus on the “central principle” in Roe v. Wade, 410 U.S. 113 (1973), that “[b]efore viability, the State’s interests are not strong enough to support a prohibition on abortion.” Casey, 505 U.S. at 846, 871. As this Court recognized in its preliminary injunction decision, S.B. 23’s six-week ban on abortion would “have the effect of preventing nearly all [previability] abortions in Ohio,” and as such, the obstacle erected would “not merely [be] ‘substantial,’ but, rather, ‘insurmountable.’” Preterm-Cleveland, 394 F. Supp. 3d at 801. These findings apply with equal force to the Director’s Order, which, if enforced to ban surgical abortions, will ban nearly all abortions at ten weeks and later.
Moreover, as a result of the earlier proceedings in this case (as well as in Planned Parenthood Southwest Ohio Region v. Yost, 375 F. Supp. 3d 848 (S.D. Ohio 2019)), the Court has significant familiarity with many of the facts that are relevant to the claims in Plaintiffs’ proposed Supplemental Complaint. For instance, these facts include the provision of abortion in Ohio, the safety of abortion, the reasons patients seek abortion, the burdens faced by patients seeking abortion care, and the harms caused by denying or delaying abortion care. As a result of the Court’s “familiarity with the subject matter,” supplementation would “serv[e] the efficient administration of justice.” Ohio Valley Envtl. Coal. v. U.S. Army Corps of Engineers, 243 F.R.D. 253, 257 (S.D. W. Va. 2007).
Second, not only is the Court familiar with the overlapping subject matter but the Director’s Order, if enforced to ban all surgical abortions, would nullify a majority of the relief the Court granted with its preliminary injunction. According to the latest data from ODH, more
5

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than 56% of abortions in the state in 2018 were surgical abortions.3 Supplementation is therefore appropriate to “prevent [an] end-run by the State,” United States v. Ohio, No. 2:08-CV-00475, 2014 WL 1308718, at *4 (S.D. Ohio Mar. 28, 2014) (Marbley, J.), which would “circumvent” the relief ordered by the Court earlier in this litigation, Griffin, 377 U.S. at 226.
Third, supplementation will prevent unnecessary duplication of efforts and conserve judicial resources by consolidating most of the same plaintiffs and defendants addressing many of the same facts, issues, and claims in a single lawsuit. See, e.g., Ohio, 2014 WL 1308718, at *7 (granting the plaintiff’s motion to file a supplemental complaint to avoid “piecemeal litigation and needless waste of judicial resources”). Nearly all of the original plaintiffs seek relief against the same defendants in this action.
For these reasons, if Plaintiffs were required to file a new action, the two actions would clearly be related under Local Rule 3.1(b).4 Denying supplementation and requiring a new, and related action would result in “pointless formality,” and a purpose of Rule 15(d) is to avoid that by promoting an “efficient mechanism for litigating such claims.” United States ex rel. Gadbois
3 John Paulson & Donna L. Smith, ODH, Induced Abortions in Ohio 23 (2019), https://tinyurl.com/ufxuqpw.
4 Under the local rule, actions are related if they: (1) Arise from the same or substantially identical transaction, happening, or event; or
(2) Call for a determination of the same or substantially identical questions of law or fact; or
(3) Would entail a substantial duplication of effort and expense by the Court and the parties if heard by different Judges; or
(4) Seek relief that could result in a party’s being subject to conflicting orders of this Court. S.D. Ohio Civ. Rule 3.1(b).
6

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v. PharMerica Corp., 809 F.3d 1, 4 (1st Cir. 2015) (citing Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1186–87 (10th Cir. 2015)).5 Accordingly, under the Sixth Circuit’s liberal standard for allowing supplementation, Plaintiffs’ motion should be granted. II. Supplementation Will Not Prejudice Defendants
The filing of the proposed Supplemental Complaint will not prejudice Defendants. The parties have not engaged in any discovery, and there has been no significant activity in the case since briefing completed on Plaintiffs’ motion for judgment on the pleadings. Indeed, a discovery schedule has not yet been set because the Court delayed the filing of the parties’ Rule 26(f) Report until fourteen days after the Court rules on Plaintiffs’ motion for judgment on the pleadings. See Notation Order (Sept. 11, 2019). Thus, no party would be prejudiced by supplementation. See Phelps v. McClellan, 30 F.3d 658, 662–63 (6th Cir. 1994) (“In determining what constitutes prejudice, the court considers whether the assertion of the new claim or defense would: require the opponent to expend significant additional resources to conduct discovery and prepare for trial; significantly delay the resolution of the dispute; or prevent the plaintiff from bringing a timely action in another jurisdiction.”); Sims v. Montgomery Cty. Comm’n, 873 F. Supp. 585, 610 (M.D. Ala. 1994) (finding defendants would suffer no prejudice from amendment when, inter alia, they would not be subject to any additional discovery or trial preparation); Ohio, 2014 WL 1308718, at *7 (same).
5 See also Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981) (“[I]t is appropriate for the court to consider judicial economy and the most expeditious way to dispose of the merits of the litigation.”); New Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 28–29 (4th Cir. 1963) (“Rule 15(d) of the Federal Rules of Civil Procedure provides for such a supplemental pleading. It is a useful device, enabling a court to award complete relief, or more nearly complete relief, in one action, and to avoid the cost, delay and waste of separate actions which must be separately tried and prosecuted. So useful they are and of such service in the efficient administration of justice that they ought to be allowed as of course . . . .”).
7

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Finally, Plaintiffs bring this motion in good faith—to preserve the full scope of the Court’s preliminary injunction, which protects Plaintiffs’ patients’ constitutional rights. The filing of the proposed Supplemental Complaint is not futile, as it is not designed to correct any deficiencies in the original Verified Complaint but instead to add new claims and a new plaintiff (and the factual allegations necessary for that purpose).
Thus, supplementation will not prejudice Defendants, and the Court should grant Plaintiffs’ motion.
CONCLUSION Good cause exists for an expedited ruling on this motion, given Plaintiffs’ need for urgent relief. For the reasons set forth above, the Court should grant this motion and permit Plaintiffs to file the attached proposed Supplemental Complaint.
Dated: March 30, 2020
Respectfully Submitted,
/s/ B. Jessie Hill B. Jessie Hill #0074770 Trial Attorney for Plaintiffs Cooperating Counsel for the American Civil Liberties Union of Ohio Foundation American Civil Liberties Union of Ohio 4506 Chester Ave. Cleveland, OH 44103 (216) 368-0553 (216) 368-2086 (fax) bjh11@cwru.edu Counsel for Plaintiff Preterm-Cleveland
Elizabeth Watson* Rachel Reeves* Brigitte Amiri* 8

Case: 1:19-cv-00360-MRB Doc #: 39 Filed: 03/30/20 Page: 9 of 10 PAGEID #: 400
American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2633 (212) 549-2650 (fax) ewatson@aclu.org rreeves@aclu.org bamiri@aclu.org Counsel for Plaintiff Preterm-Cleveland
Carrie Y. Flaxman** Richard Muniz* Planned Parenthood Federation of America 1110 Vermont Ave NW, Suite 300 Washington, DC 20005 (202) 973-4800 (202) 296-3480 (fax) richard.muniz@ppfa.org julie.murray@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, and Sharon Liner, M.D.
Hana Bajramovic** Planned Parenthood Federation of America 123 William Street, Floor 9 New York, NY 10038 (212) 541-7800 (212) 247-6811 (fax) hana.bajramovic@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, and Sharon Liner, M.D
Jennifer L. Branch # 0038893 Alphonse A. Gerhardstein # 0032053 Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202 (513) 621-9100
9

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(513) 345-5543 (fax) jbranch@gbfirm.com agerhardstein@gbfirm.com Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Sharon Liner, M.D., Women’s Med Group Professional Corporation and Capital Care Network of Toledo Freda J. Levenson #0045916 American Civil Liberties Union of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44103 (614) 586-1972 x 125 (216) 472-2210 (fax) flevenson@acluohio.org Counsel for Plaintiff Preterm-Cleveland * Admitted pro hac vice ** Pro hac vice forthcoming
10

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EXHIBIT A

Case: 1:19-cv-00360-MRB Doc #: 39-1 Filed: 03/30/20 Page: 2 of 67 PAGEID #: 403

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

PRETERM-CLEVELAND C/O B. JESSIE HILL ACLU of Ohio 4506 Chester Ave. Cleveland, OH 44103
PLANNED PARENTHOOD SOUTHWEST OHIO REGION C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
SHARON LINER, M.D. C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
PLANNED PARENTHOOD GREATER OHIO C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
WOMEN’S MED GROUP PROFESSIONAL CORPORATION C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
CAPITAL CARE NETWORK OF TOLEDO C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
NORTHEAST OHIO WOMEN’S CENTER C/O B. JESSIE HILL ACLU of Ohio 4506 Chester Ave. Cleveland, OH 44103

: Case No. 1:19-cv-00360 : : Judge: Michael R. Barrett : : : SUPPLEMENT TO VERIFIED : COMPLAINT FOR DECLARATORY : AND INJUNCTIVE RELIEF : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

Case: 1:19-cv-00360-MRB Doc #: 39-1 Filed: 03/30/20 Page: 3 of 67 PAGEID #: 404

Plaintiffs,

:

vs.

:

:

DAVID YOST

:

Attorney General of Ohio

:

30 E. Broad Street, 14th Floor

:

Columbus, OH 43215

:

:

AMY ACTON

:

Director, Ohio Department of Health

:

246 N. High Street

:

Columbus, OH 43215

:

:

KIM G. ROTHERMEL, M.D.

:

Secretary, State Medical Board of Ohio :

30 East Broad Street, 3rd Floor

:

Columbus, OH 43215

:

:

BRUCE R. SAFERIN, D.P.M.

:

Supervising Member, State Medical

:

Board of Ohio

:

30 East Broad Street, 3rd Floor

:

Columbus, OH 43215

:

:

MICHAEL C. O’MALLEY

:

Cuyahoga County Prosecutor

:

Justice Center Bld. Floor 8th and 9th

:

1200 Ontario Street

:

Cleveland, OH 44113

:

:

JOSEPH T. DETERS

:

Hamilton County Prosecutor

:

230 E. Ninth Street, Suite 4000

:

Cincinnati, OH 45202

:

:

RONALD O’BRIEN

:

Franklin County Prosecutor

:

373 S. High Street, 14th Floor

:

Columbus, OH 43215

:

:

GARY BISHOP

:

Richland County Prosecutor

:

38 South Park Street

:

Mansfield, OH 44902

:

:

PAUL J. GAINS

:

2

Case: 1:19-cv-00360-MRB Doc #: 39-1 Filed: 03/30/20 Page: 4 of 67 PAGEID #: 405

Mahoning County Prosecutor

:

21 W. Boardman Street, 6th Floor

:

Youngstown, OH 44503

:

:

MATHIAS HECK, JR.

:

Montgomery County Prosecutor

:

301 W. Third St.

:

P.O. Box 972

:

Dayton, OH 45402

:

:

JULIA R. BATES

:

Lucas County Prosecutor

:

700 Adams Street, Suite 250

:

Toledo, OH 43604

:

:

SHERRI BEVAN WALSH

Summit County Prosecutor

53 University Ave.

Akron, Ohio 44308

Defendants.

SUPPLEMENTAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, by and through their attorneys, bring this Supplemental Complaint against the
above-named Defendants, their employees, agents, and successors in office, and in support thereof state the following:
INTRODUCTION 1. This is a constitutional challenge, under 42 U.S.C. § 1983, to Senate Bill 23, 133rd Gen. Assemb. (hereinafter “the Ban”), attached as Exhibit A. 2. This is also a constitutional challenge to the Ohio Health Director’s March 17, 2020 order entitled: “RE: Director’s Order for the Management of Non-essential Surgeries and Procedures throughout Ohio” (“Director’s Order”), as applied to surgical abortion procedures,

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attached as Exhibit B.1 3. In the absence of an injunction, the enforcement of the Director’s Order to ban
virtually all surgical abortion would ban the only abortion method available for all patients who are over 10 weeks pregnant and the only method available to some patients at any point in pregnancy.
4. For over forty-six years, U.S. law has recognized the fundamental federal constitutional right to make the profoundly important and personal decision whether or not to terminate a pregnancy. The U.S. Supreme Court has repeatedly recognized that this right is central to obtaining equality and respecting the dignity, autonomy, and bodily integrity of all individuals.
5. The decision to terminate a pregnancy is informed by a combination of diverse, complex, and interrelated factors that are intimately related to the individual’s values and beliefs, culture and religion, health status and reproductive history, familial situation, and resources and economic stability. In direct conflict with Roe v. Wade, 410 U.S. 113 (1973), and more than four decades of precedent affirming Roe’s central holding, the Ban criminalizes almost all previability abortions. Specifically, the Ban makes it a crime to perform an abortion after detection of cardiac activity, which generally occurs around six weeks in pregnancy, when many women2 are unaware they are pregnant. In so doing, the Ban prohibits approximately 90% of abortions
1 https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/directorsorder-non-essential-surgery-3-17-2020 2 Plaintiffs use “woman” or “women” in this complaint as a short-hand for people who are or may become pregnant, but note that people of all gender identities, including gender nonconforming people and transgender men, may also become pregnant and seek abortion services and would thus also suffer irreparable harm as a result of the Ban.
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currently performed in Ohio and violates Plaintiffs’ patients’ rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.
6. The Ohio Legislature passed the Ban on April 10, 2019, and Governor DeWine signed the Ban on April 11, 2019. If the Ban takes effect as scheduled on July 10, 2019, it will instantly criminalize the performance of almost all abortions in Ohio. Governor DeWine acknowledged that the Ban is blatantly unconstitutional and has stated that the Ban is an opportunity to advocate for “reversal of existing legal precedents.”3
7. Unless this Court grants a temporary restraining order or preliminary injunction, and later a permanent injunction, Plaintiffs will be forced to turn away patients seeking abortion care. This is a direct violation of Plaintiffs’ patients’ fundamental constitutional right to decide whether to have an abortion prior to viability, and causes those patients irreparable harm.
JURISDICTION AND VENUE 8. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. 9. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court. 10. Venue is appropriate under 28 U.S.C § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occur in this judicial district.
PLAINTIFFS
3 Ohio Gov. Mike DeWine Signs Ban on Abortion After 1st Heartbeat, Associated Press (Apr. 12, 2019), https://www.apnews.com/0b1deb8c1f5d41d8ab4c9e32446a55ce. Similarly, S.B. 23’s sponsor in the Senate acknowledged that, if upheld, S.B. 23 would create “a new standard” for determining an abortion restriction’s constitutionality. Talia Kaplan, Ohio “Heartbeat” Abortion Ban Passes Senate as Governor Vows to Sign It, Fox News (Mar. 14, 2019), https://www.foxnews.com/faith-values/ohio-heartbeat-abortion-ban-closer-to-becoming-law.
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11. Plaintiff Preterm-Cleveland (“Preterm”), a nonprofit corporation organized under the laws of the State of Ohio, has operated a reproductive health care clinic in Cleveland, Ohio since 1974. Preterm provides a wide range of reproductive and sexual health care services. The abortion providers at Preterm are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. Preterm faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. Preterm sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
12. Plaintiff Planned Parenthood Southwest Ohio Region (“PPSWO”) is a nonprofit corporation organized under the laws of the State of Ohio. PPSWO and its predecessor organizations have provided a broad range of high-quality reproductive health care to patients in southwest Ohio since 1929. PPSWO’s surgery center, located in Cincinnati, provides abortion services. The abortion providers at PPSWO are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. PPSWO faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. PPSWO sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
13. Plaintiff Sharon Liner, M.D., is a physician licensed to practice medicine in Ohio with fifteen years of experience in women’s healthcare. Dr. Liner is PPSWO’s Medical Director, and in that role she supervises physicians providing abortions, develops PPSWO’s policies and procedures, and provides health care services including abortion. Dr. Liner has been providing abortions since 2002. Dr. Liner faces criminal penalties if she violates the Director’s Order and potential loss of her medical license. She sues on her own behalf and on behalf of her patients.
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14. Plaintiff Planned Parenthood of Greater Ohio (“PPGOH”) is a nonprofit corporation organized under the laws of the State of Ohio. PPGOH was formed in 2012 through a merger of several local and regional Planned Parenthood affiliates that had served patients in Ohio for decades. PPGOH serves patients in northern, eastern, and central Ohio. Four PPGOH health centers, located in East Columbus, Bedford Heights, Mansfield, and Youngstown, provide abortion services. The Mansfield and Youngstown health centers provide only medication abortion services. The abortion providers at PPGOH are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. PPGOH faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. PPGOH sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
15. Plaintiff Women’s Med Group Professional Corporation (“WMGPC”) owns and operates Women’s Med Center of Dayton (“WMCD”) in Kettering, Ohio. WMGPC and its predecessors have been providing abortions in the Dayton area since 1975. The abortion providers at WMCD are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. WMGPC faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. WMGPC sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
16. Plaintiff Capital Care Network of Toledo (“CCNT”), a corporation organized under the laws of the State of Ohio, has operated a health care clinic in Toledo, Ohio since 2007. The abortion providers at CCNT are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. CCNT sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
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17. Plaintiff Northeast Ohio Women’s Center (“NEOWC”) is a corporation organized under the laws of the State of Ohio, and operates health care clinics in Cuyahoga Falls and Shaker Heights. NEOWC faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. NEOWC sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
18. Plaintiffs provide medication abortion, surgical abortion, or both medication and surgical abortion at and after six weeks from the first day of the patient’s last menstrual period (“LMP”). In accordance with Ohio law, no Plaintiffs provide abortion care at or after twenty weeks post-fertilization (twenty-two weeks LMP). Ohio Rev. Code § 2919.201.
DEFENDANTS 19. Defendant David Yost is the Attorney General of the State of Ohio. He is responsible for the enforcement of all laws, including the Ban. Under the Ban, he is also charged with commencing and prosecuting civil forfeiture when directed to do so by the State Medical Board. S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(B). He also has sought to enforce the Director’s Order by sending letters to some of the Plaintiffs telling them “to immediately stop performing non-essential and elective surgical abortions” or ODH “will take all appropriate measures.” Furthermore, he may file an enforcement action to close the facility, refer Plaintiffs and their physicians to local prosecutors for criminal prosecution, and refer to the Medical Board for discipline of Plaintiff Dr. Liner or Plaintiffs’ physicians. He is sued in his official capacity. 20. Defendant Amy Acton, M.D., M.P.H., is the Director of the Ohio Department of Health (“ODH”), which is responsible for promulgating rules to assist in compliance with the Ban, including rules governing the process for determining whether a fetal heartbeat exists and rules dictating reporting requirements. She is charged with administering ODH. She signed the
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Director’s Order and has the authority to enforce it. On March 26, 2019, she publicly announced that ODH was investigating three Plaintiff clinics and sent ODH inspectors to those Plaintiff clinics. As a result of her inspections, she can refer any violations to Defendant Yost for enforcement, including an action to close the facility, and she can revoke Plaintiff’s ASF licenses. She is sued in her official capacity.
21. Defendant Kim G. Rothermel, M.D., is the Secretary of the State Medical Board of Ohio, which is charged with enforcing the physician licensing and civil penalties contained in the Ban. The Board also has authority to act against a physician’s license based on a commission of an unlawful act. She is sued in her official capacity.
22. Defendant Bruce R. Saferin, D.P.M., is the Supervising Member of the State Medical Board of Ohio, which is charged with enforcing the physician licensing and civil penalties contained in the Ban. The Board also has authority to act against a physician’s license based on a commission of an unlawful act. He is sued in his official capacity.
23. Defendant Michael C. O’Malley is the Cuyahoga County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Cuyahoga County, where Preterm’s clinic, PPGOH’s Bedford Heights health center, and NEOWC’s Shaker Heights clinic are located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
24. Defendant Joseph T. Deters is the Hamilton County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Hamilton County, where PPSWO’s Cincinnati surgery center is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
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25. Defendant Ronald O’Brien is the Franklin County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Franklin County, where PPGOH’s East Columbus health center is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
26. Defendant Gary Bishop is the Richland County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Richland County, where PPGOH’s Mansfield health center is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
27. Defendant Paul G. Gains is the Mahoning County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Mahoning County, where PPGOH’s Youngstown health center is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
28. Defendant Mathias H. Heck, Jr. is the Montgomery County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Montgomery County, where WMGPC’s WMCD facility is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
29. Defendant Julia R. Bates is the Lucas County Prosecutor. She is responsible for the enforcement of all of the criminal laws in Lucas County, where CCNT’s health center is located, including the criminal provisions contained in the Ban. She is sued in her official capacity.
30. Defendant Sherri Bevan Walsh is the Summit County Prosecutor. She is responsible for the enforcement of all of the criminal laws in Summit County, where NEOWC’s
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Cuyahoga Falls health center is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. She is sued in her official capacity.
LEGAL FRAMEWORK The Ban
31. If a pregnancy is in the uterus, Ohio law requires the provider who intends to perform an abortion to determine whether there is cardiac activity.4 If there is cardiac activity, the Ban makes it a crime to “caus[e] or abet[] the termination of” the pregnancy. S.B. 23 § 1, amending Ohio Rev. Code §§ 2919.192(A), 2919.192(B), 2919.195(A).
32. The Ban has only two very limited exceptions. The Ban permits abortion after cardiac activity is detected only if the abortion is necessary (1) to prevent the patient’s death, or (2) to prevent a “serious risk of the substantial and irreversible impairment of a major bodily function.” S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(B). “‘Serious risk of the substantial and irreversible impairment of a major bodily function’ means any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function.” Ohio Rev. Code § 2919.16(K). A “medically diagnosed condition that constitutes a ‘serious risk of the substantial and irreversible impairment of a major bodily function’ includes pre-eclampsia, inevitable abortion, and premature rupture of the membranes,” but “does not include a condition related to the woman’s mental health.” Id.
33. A violation of the Ban is a fifth-degree felony, punishable by up to one year in
4 The Ban instructs the Ohio Department of Health to adopt rules “specifying the appropriate methods of performing an examination for the purpose of determining the presence of a fetal heartbeat” within 120 days of the Ban’s effective date. S.B. 23 § 1, amending Ohio Rev. Code § 2919.192.
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prison and a fine of $2,500. S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(A); Ohio Rev. Code §§ 2929.14(A)(5), 2929.18(A)(3)(e). In addition to criminal penalties, the state medical board may assess a forfeiture of up to $20,000 for each violation of the Ban, S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(A), and limit, revoke, or suspend a physician’s medical license based on a violation of the Ban, see Ohio Rev. Code § 4371.22(B)(10). The Plaintiff facilities could face criminal penalties and revocation of their ambulatory surgical center license for a violation of the Ban. A patient may also bring a civil action against a provider who violates the Ban and recover damages in the amount of $10,000 or more. S.B. 23 § 1, amending Ohio Rev. Code § 2919.199(B)(1).
The Director’s Order 34. In March 2020, the United States and Ohio both declared a state of emergency related to the COVID-19 pandemic. See Director’s Order at 3; Ohio Exec. Order 2020-01D;5 Proclamation No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020). The virus has reached every State in the country, including approximately 1653 confirmed cases in Ohio and 29 deaths as of the time of filing.6 Federal and state officials and medical professionals expect a surge of infections—which may last for a year or eighteen months7—testing the limits of the

5 Available at https://tinyurl.com/ud789de.

6 CDC, Cases in U.S. (last updated Mar. 29, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/cases-updates/cases-in-us.html;

ODH,

COVID-19,

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/ (last visited Mar. 29, 2020).

7 Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. Times (Mar. 8, 2020), https://www.nytimes.com/2020/03/08/health/fauci-coronavirus.html.

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health care system,8 which is already facing a shortage of personal protective equipment (“PPE”), particularly N95 masks.9
35. In light of this new reality, on March 17, 2020, Dr. Amy Acton, Director of ODH, issued an order barring all “non-essential surgeries and procedures” beginning at 5 p.m. on March 18, 2020. Director’s Order at 4.10 The order states that its purpose is to “preserv[e] personal protective equipment (PPE) and critical hospital capacity and resources within Ohio.” Id.
36. Although the order does not define PPE, Plaintiffs understand that term to refer, for example, to surgical masks, sterile gloves, disposable protective eyewear, disposable gowns, and shoe covers.
37. The Director’s Order defines a “non-essential surgery” as “a procedure that can be delayed without undue risk to the current or future health of a patient,” and lists “[e]xamples of criteria to consider,” including whether there is a “threat to the patient’s life if surgery or [the] procedure is not performed,” a “[t]hreat of permanent dysfunction of an extremity or organ system,” a “risk of metastasis or progression of staging,” or a “risk of rapidly worsening to severe symptoms (time sensitive).” Director’s Order at 4.
38. The Director’s Order remains in effect until the state of emergency declared by
8 Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States, CDC (last updated Feb. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf.html 9 Andrew Jacobs, Matt Richtel & Mike Baker, ‘At War With No Ammo’: Doctors Say Shortage of Protective Gear Is Dire, N.Y. Times (Mar. 19, 2020), https://www.nytimes.com/2020/03/19/health/coronavirus-masks-shortage.html. 10 The Director’s Order cites as its authority section 3701.13, which allows ODH to “make special or standing orders or rules for preventing the spread of contagious or infectious diseases” Ohio. Rev. Code § 3701.13.
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the Ohio governor no longer exists or ODH rescinds or modifies the order. Id. ODH has indicated that it applies to hospitals and ambulatory surgical facilities (“ASF”) in Ohio. See Ohio Rev. Code § 3702.30 (defining ASFs). The Order provides that “[e]ach hospital and outpatient surgery or procedure provider shall establish an internal governance structure to ensure the principles outlined above are followed.” Director’s Order at 4. The Director may petition for injunctive or other relief. Ohio Rev. Code § 3701.57. In addition, violation of the Director’s Order is a second-degree misdemeanor. Ohio Rev. Code § 3701.352.
FACTUAL ALLEGATIONS Six Week Ban
39. In a normally developing embryo, cells that form the basis for development of the heart later in gestation produce activity that can be detected with ultrasound.
40. Consistent with medical practice, as well as existing law, see Ohio Rev. Code § 2919.191(A), Plaintiffs perform an ultrasound to date the pregnancy and to determine whether there is detectable fetal or embryonic cardiac activity.11 Ultrasounds can be performed either by placing a transducer on the patient’s abdomen or by inserting a probe into the patient’s vagina. Many providers, including providers at Plaintiff clinics, use vaginal ultrasound to confirm and date early pregnancy.
41. Using vaginal ultrasound, cardiac activity is generally detectible beginning at approximately six weeks, zero days LMP.12
11 The embryonic stage of pregnancy lasts from fertilization until approximately eight to ten weeks LMP. Beginning at about eleven weeks LMP, the embryo becomes a fetus. 12 See Thomas Gellhaus, M.D., ACOG Opposes Fetal Heartbeat Legislation Restricting Women’s Legal Right to Abortion, American Congress of Obstetricians & Gynecologists (Jan.
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42. Ohio law prohibits abortion after viability, except when that abortion is necessary to preserve the pregnant woman’s life or health.13 Ohio Rev. Code § 2919.17.
43. Six weeks LMP is a pre-viability point in pregnancy. At that point, no embryo is capable of surviving outside of the womb. Thus, the Ban prohibits abortion well before viability.
A. A Ban on Abortion at and After Six Weeks LMP Will Practically Eliminate Abortion Care in Ohio 35. Pregnancy is commonly measured from the first day of a woman’s last menstrual period. A full-term pregnancy is approximately forty weeks LMP. 36. The menstrual cycle is usually approximately four weeks long, but will vary based on the individual. Thus, even a woman with highly regular periods would be four weeks pregnant as measured from her last menstrual period when her missed period occurs. A ban on abortion at and after six weeks would only allow two weeks, at most, for a woman to learn that she is pregnant, decide whether to have an abortion, and to seek and obtain abortion care. 37. Prior to six weeks LMP, many women have none of the physical indicators of pregnancy. Many women do not menstruate at regular intervals, or they go long stretches without experiencing a menstrual period. Menstrual patterns commonly vary with age. Indeed, it is extremely common for women to have irregular periods at some point in their lives. Additionally, women may experience bleeding in early pregnancy that can be mistaken for a period.
18, 2017), https://www.acog.org/About-ACOG/News-Room/Statements/2017/ACOG-OpposesFetal-Heartbeat-Legislation-Restricting-Womens-Legal-Right-to-Abortion. 13 Another provision of Ohio law prohibits abortion after twenty weeks post-fertilization, or twenty-two weeks LMP. Ohio Rev. Code § 2919.201.
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38. Further, women who have certain common medical conditions, such as obesity, those who are breastfeeding, or those who use hormonal contraceptives may experience irregular periods and therefore may not recognize a missed period before six weeks LMP.
39. For all of these reasons, a woman may be six weeks pregnant but not realize she has missed a period, much less consider a missed period unusual or a signal that she may be pregnant.
40. On top of these biological realities, many patients face logistical obstacles that will make it difficult to obtain an abortion before six weeks in pregnancy.
41. For example, Ohio law mandates that a patient make two in-person trips to the clinic before obtaining an abortion in order to consent, determine whether there is cardiac activity, and receive state-mandated information. Ohio Rev. Code § 2317.56. These visits must be at least twenty-four hours apart. Id.
42. State law prohibits Medicaid and other public insurance programs, as well as private insurance plans listed on Ohio’s federally run insurance exchange, from covering abortion. Ohio Rev. Code §§ 9.04, 3901.87; Ohio Admin. Code § 5160-17-01. Thus, patients often need time to gather the resources to pay for the abortion and related costs, as well as to arrange transportation to the clinic, time off from work, and possibly arrange for childcare during appointments.
43. In addition to completing this two-day process, patients under eighteen must obtain written consent from a parent or a court order from a judge before receiving abortion care. Ohio Rev. Code § 2919.121.
44. For all of the reasons stated above, approximately 90% of abortions in Ohio occur after six weeks.
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45. Thus, the Ban will prohibit almost all abortion care in Ohio. Director’s Order
Plaintiffs’ Practices to Protect Patients During the COVID-19 Outbreak and Compliance With Director’s Order 46. Plaintiffs are committed to responding to the current public health crisis, including by preserving much-needed medical resources that are in short supply during the pandemic such as PPE. 47. Neither surgical abortion nor medication abortion requires extensive PPE. A typical surgical abortion requires minimal use of some or all of the following: gloves, a surgical mask, protective eyewear, disposable and/or washable gowns, and hair and shoe covers. Medication abortion uses less PPE than surgical abortion as the process of handing patients a pill requires no PPE at all. Since the Order, when a patient is eligible for both surgical and medication abortion, patients are provided a medication abortion, unless surgical abortion is the more appropriate method. 48. Plaintiffs do not use N95 masks, which, upon information and belief, are the PPE that are in shortest supply during the COVID-19 pandemic, for abortion. Furthermore, only a small number of health care staff are physically present for abortion procedures or their preparation/recovery and therefore in need of PPE. 49. Plaintiffs have also taken other precautions to maximize the safety of their patients and staff and to conserve PPE consistent with CDC guidance. For example, they are screening patients for COVID-19 symptoms before each visit. They have reduced patient volume and/or increased appointment spacing between patients. Plaintiffs have also made changes to the flow of patient care in order to comply with social-distancing recommendations by, for exampling, reconfiguring waiting rooms or having patients wait in their cars. Prior to the
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COVID-19 outbreak, Plaintiffs welcomed support persons to accompany abortion patients, but Plaintiffs have now decided not to allow such companions (except parents accompanying minors) to enter their health centers in order to reduce the number of overall people that can be near one another.
50. Patients who are prevented from obtaining abortion care as a result of the Order must still seek medical care to maintain their health and well-being. Thus, pregnant patients will require care from providers using PPE whether the pregnancy is terminated or not. In the event that this crisis continues for months—as it is expected to do—people will be forced to give birth against their will, necessitating the use of more PPE, and the use of hospital beds.
51. Plaintiffs promptly adopted policies to implement the Director’s Order.14 Each policy forbids the performance of “non-essential surgeries and procedures that utilize PPE” until the end of Ohio’s declared emergency or the Director’s Order is modified or rescinded. Plaintiffs’ policies observed that the timeframe for a patient to obtain an abortion is limited given that abortion is banned in Ohio at 22 weeks LMP.
52. Plaintiffs’ policies direct physicians to consider the plain terms of the Director’s Order, which states that “a surgery is essential if it cannot ‘be delayed without undue risk to the current or future health of a patient’ and includes, as examples of criteria to consider, the risk to the patient of rapidly worsening to severe symptoms that make the surgery time sensitive, as well as a progression of staging.” While abortion is an extremely safe medical procedure, it cannot be delayed without increasing the risk to the health of the patient.
53. Plaintiffs’ policies also cite the position of American College of Obstetricians and
14 Plaintiff Dr. Liner did not adopt such a policy because she is an individual (and not a hospital or ASF); however, as medical director of Plaintiff PPSWO, she was responsible for adoption of its implementing policy.
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Gynecologists (“ACOG”), the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine. These trusted national medical organizations issued a joint statement on “Abortion Access During the COVID-19 Outbreak,” which provides that “[t]o the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”15
54. Plaintiffs’ policies also cited the Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” which concurred with the American College of Surgeons’ recommendation that consideration of whether delay of a surgery during the pandemic is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”16
15 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-accessduring-the-covid-19-outbreak. (Attached as Exhibit D to Liner Declaration in Support of Plaintiffs’ Motion for a TRO.) 16 Ambulatory Surgery Ctr. Ass’n, COVID-19: Guidance for ASCs on Necessary Surgeries (last updated Mar. 19, 2020), https://www.ascassociation.org/asca/resourcecenter/latestnewsresourcecenter/covid-19/covid-19guidance (quoting Am. Coll. of Surgeons, COVID-19: Recommendations for Management of Elective Surgical Procedures (Mar. 13, 2020), https://www.facs.org/about-acs/covid-
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Defendants Yost and Acton’s Enforcement of the Director’s Order 55. Defendants Yost and Acton’s enforcement of the Order began when three Plaintiffs—WMCD, PPSWO, and Preterm—received letters via email from the Ohio Attorney General on March 20 and March 21 ordering those Plaintiffs “to immediately stop performing non-essential and elective surgical abortions” or ODH “will take all appropriate measures.” 56. These Plaintiffs responded to the Attorney General by confirming their compliance with the Director’s Order, amending their policies to clarify that physicians must make a case-by-case determination of whether the abortion is essential, and offering to share their implementing policies. 57. These three Plaintiffs received no further communication from the Attorney General, but were inspected by ODH all day on March 26 and March 27 by two inspectors per facility. After two days of inspections, the inspectors left without telling the facilities whether or not they had found violation of the Director’s Order or any other regulation—a distinct break with established ODH practice and procedure—and instead said their superiors would make that determination at an unspecified later date. 58. On March 26, Director Acton said at a press conference that ODH had “listened to the AG” and began to investigate “violations [of the Order] across the state,” including at abortion clinics.17 At that same press conference, Governor DeWine made clear that he interprets the Director’s Order to allow surgical abortion when the abortion “is done to save someone’s life[.]” That same day, the Attorney General again threatened “quick enforcement 19/information-for-surgeons/elective-surgery). (Attached as Exhibit E to Liner Declaration in Support of Plaintiffs’ Motion for a TRO.) 17 Gov. Mike DeWine Corona Virus Update March 26, 2020, available at https://www.ideastream.org/gov-mike-dewine-coronavirus-update-march-26-2020.
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action” against clinics that continue to provide surgical abortion care.18 59. Enforcement of the Director’s Order to ban virtually all surgical abortion would
ban the only abortion method available for all patients who are over 10 weeks pregnant and the only method available to some patients at any point in pregnancy.
60. There are two main methods of abortion: medication abortion and surgical abortion. Medication abortion involves a combination of two pills: mifepristone and misoprostol. The patient takes the first medication in the health center and then, typically twenty-four to forty-eight hours later, takes the second medication at a location of their choosing, most often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage. Surgical abortion is not what is commonly understood to be “surgery”; it involves no incision. It involves the use of instruments and/or gentle suction to safely empty the contents of the uterus.
61. For some patients, medication abortion is contraindicated or there are other factors that would counsel in favor of a surgical abortion, such as patients with an allergy to the medications or other medical conditions that makes surgical abortion relatively more appropriate.
62. All plaintiffs provide medication abortion up to ten weeks LMP (through seventy days). Plaintiffs provide surgical abortion up to maximum gestations ranging from fifteen weeks and six days up to twenty-one weeks and six days LMP.19
18 Attorney General Yost press release March 26, 2020 states that Attorney General Yost is “the prosecutor” and ODH is the “police officer” and he vowed to “take quick enforcement action once an investigation is completed by [ODH] . . . .” Yost stated that he “stands ready to play our role and pursue legal action on behalf of [ODH].” (Attached as Exhibit C.) 19 Ohio Revised Code section 2919.123 restricts the first drug to the federally approved label, which is ten weeks. See FDA, Mifeprex (mifepristone) Information (last updated Feb. 5, 2018), https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-
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63. According to the latest data from ODH in 2018, 55.7% of Ohio abortions in 2018 occurred before nine weeks gestational age, while 44.3% occurred at or after nine weeks.20 More than 56% of abortions in the state were surgical abortions.21
64. The length of the Director’s Order is tethered to the pandemic, which experts believe will last at least one year to eighteen months, if not more.22 As a result, if applied to ban surgical abortion, the Director’s Order could force patients who would otherwise obtain a surgical abortion—that is, all those who are ten or more weeks pregnant and those with earlier pregnancies for whom medication abortion is not appropriate—to “delay” care until the pandemic is over. Director’s Order at 4. At least 56% of patients seeking abortion in Ohio fall into those categories.
65. To enforce their interpretation of the Director’s Order, Defendants could take action to close the facilities, prosecute Plaintiffs and their staff, and take action on Plaintiffs’ physicians’ medical licenses.
mifepristone-information; Ohio Revised Code section 2919.201 prohibits abortions after twentytwo weeks LMP. 20 John Paulson & Donna L. Smith, ODH, Induced Abortions in Ohio 24 (2019), https://tinyurl.com/ufxuqpw. 21 Id. at 23. 22 See Grady, supra note 7; Am. Coll. of Surgeons, supra note 16; see also Mark Fisher, Ohio’s Schools May Have to Remain Closed for Rest of School Year, DeWine Says, Dayton Daily News (Mar. 15, 2020), https://www.daytondailynews.com/news/local/gov-dewine-ohio-schools-mayhave-remain-closed-for-rest-school-year/wLWoHUCq2mMWKtZPVStxFM (Gov. DeWine acknowledging schools “absolutely” may be closed for the remainder of the school year).
22

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B. Impact of Banning Abortion Care in Ohio 66. The near-total ban on abortion imposed by S.B. 23, and the ban on surgical abortions under the Director’s Order, would have a devastating impact on the lives of individuals who want to consider or seek abortion in Ohio. 67. Approximately one in four women in this country will have an abortion by age forty-five. A majority of those having abortions (61%) already have at least one child, while most (66%) also plan to have a child or additional children in the future.23 68. Legal abortion is one of the safest medical procedures in the United States and is substantially safer than continuing a pregnancy through to childbirth. The risk of death associated with childbirth is approximately fourteen times higher than that associated with abortion, and every pregnancy-related complication is more common among women giving birth than among those having abortions.24 69. If a woman is forced to continue a pregnancy against her will, it can pose a risk to her physical, mental, and emotional health, as well as to the stability and well-being of her family, including existing children. 70. A child can place economic and emotional strain on a family and may interfere with an individual’s life goals. As most patients who seek abortion already have at least one
23 See Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime Incidence of Abortion: United States, 2008-2014, Guttmacher Institute (Oct. 2017), https://www.guttmacher.org/article/2017/10/population-group-abortion-rates-and-lifetimeincidence-abortion-united-states-2008; Concern for Current and Future Children a Key Reason Women Have Abortions, Guttmacher Institute (Jan. 7, 2008), https://www.guttmacher.org/newsrelease/2008/concern-current-and-future-children-key-reason-women-have-abortions; Abortion Facts, National Abortion Federation, https://prochoice.org/education-and-advocacy/aboutabortion/abortion-facts/. 24 Elizabeth Raymond & David Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215, 215 (Feb. 2012).
23

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child, families must consider how an additional child will impact their ability to care for the children they already have.
71. Even for someone who is otherwise healthy and has an uncomplicated pregnancy, carrying that pregnancy to term and giving birth poses serious medical risk and can have longterm medical and physical consequences. For a woman with a medical condition caused or exacerbated by pregnancy or for a woman who learns that her fetus has been diagnosed with a severe or lethal anomaly, these risks are increased.
72. Pregnancy, childbirth, and an additional child may exacerbate an already difficult situation for those who have suffered trauma, such as sexual assault or domestic violence.
73. If a woman is forced to continue a pregnancy against her will, it can pose a risk to her physical, mental, and emotional health, as well as to the stability and wellbeing of her family, including existing children.
74. S.B. 23 and the ban under the Director’s Order will have a disproportionate impact on the lives of Black people, other people of color, and people with low incomes in Ohio.
75. Statistics show that in 2017, Black people made up only 12.9% of Ohio’s population but 40% of people who obtained abortions in Ohio; Indigenous (American Indian) people and other people of color (Asian/Pacific Islander, Multiracial, and Hispanic people) made up 8.8% of the population, but 11.9% of the people that obtain abortions.25
76. Were the Ban to go into effect, or Defendants’ enforcement of the Director’s Order to ban surgical abortions not enjoined, Black people are likely to suffer some of the
25 Induced Abortions in Ohio, Ohio Dep’t of Health (2017), https://odh.ohio.gov/wps/portal/gov/odh/know-our-programs/vital-statistics/resources/vsabortionreport2017; Quick Facts: Ohio, U.S. Census Bureau, https://www.census.gov/quickfacts/oh.
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gravest consequences. Recent statistics from the U.S. Centers for Disease Control and Prevention show that Black women are three times more likely than White women to die of causes related to pregnancy.26 In Ohio, Black infants are three times more likely than their White counterparts to die before their first birthday.27
77. A large majority of patients who obtain abortion care in Ohio are low income. 78. People who have decided to have an abortion should not be denied access to abortion, nor should their care be delayed. Although abortion is significantly safer than continuing pregnancy through childbirth, the risks associated with abortion increase as pregnancy advances. 79. The COVID-19 pandemic and its fallout do not reduce patients’ needs for abortion; if anything, they make timely access to abortion even more urgent, while raising additional obstacles for patients seeking that care. For example, even before the COVID-19 outbreak, people seeking access faced many obstacles. Low-wage workers often have no paid time off or sick leave, so even if a pregnant worker is able to get time off work for an abortion appointment, they will likely have to forgo part of a paycheck. Patients facing long travel distances typically must arrange and pay for transportation and arrange to take time off work. Many patients must also arrange and pay for childcare while they travel to their abortion appointment.
26 Emily E. Petersen et al., Vital Signs: Pregnancy-Related Deaths, United States, 2011-2015, and Strategies for Prevention, 13 States, 2013-2017, 68 Morbidity & Mortality Weekly Rep. 423 (May 10, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/mm6818e1.htm?s_cid=mm6818e1_w. 27 Ohio Infant Deaths in 2017 Second-Lowest on Record While Racial Disparities in Birth Outcomes Continued, Ohio Dep’t of Health (Dec. 6, 2018), https://odh.ohio.gov/wps/portal/gov/odh/media-center/odh-news-releases/2017-ohio-infantmortality-report.
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80. These obstacles are compounded by the various abortion restrictions already in
effect in Ohio. For example, all patients must make two in-person trips at least twenty-four
hours apart to a health center in order to obtain an abortion. Ohio Rev. Code § 2317.56. Minor
patients, unless emancipated, must also obtain written consent from a parent or a judicial order
before they can receive care. Ohio Rev. Code § 2919.121.
81. Now, during the COVID-19 pandemic, patients must navigate these barriers
against the backdrop of job insecurity, minimal public transit availability, and limited childcare assistance due to mandatory social distancing and shelter in place orders. 28 Indeed, jobless claims are soaring due to the virus.29 All of these factors can result in delay in obtaining care
which, in turn, results in higher financial and emotional costs to the patient. Those patients who
are able to obtain care out of state will face increased risk of exposure to the virus because of this
travel and providers treating those patients will still be using PPE in any case.
28 ODH, Governor DeWine Announces School Closures (Mar. 12, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-canuse/governor-dewine-announces-school-closures; ODH, Governor DeWine Orders Ohio Bars & Restaurants to Close (Mar. 15, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid19/home/news-releases-news-you-can-use/governor-dewine-orders-ohio-bars-restaurants-toclose; ODH, Governor DeWine Announces Additional Temporary Business Closures (Mar. 18, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-canuse/governor-dewine-announces-additional-temporary-business-closures; Ohio Exec. Order 2020-04D; see also White House, The President’s Coronavirus Guidelines for America (Mar. 16, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirusguidance_8.5x11_315PM.pdf; Rebecca Shabad, Fauci Predicts Americans Will Likely Need to Stay Home for at Least Several More Weeks, NBC News (Mar. 20, 2020) https://www.nbcnews.com/politics/donald-trump/fauci-predicts-americans-will-likely-need-stayhome-least-several-n1164701. 29 Scott Noll, As Ohio Unemployment Soars, Some People Are Missing Out on Benefits, News 5 Cleveland (Mar. 19, 2020), https://www.news5cleveland.com/news/local-news/as-ohiounemployment-soars-some-people-are-missing-out-on-benefits.
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82. Furthermore, while much is unknown about COVID-19, including whether it can complicate pregnancy, some pregnant people who are delayed in accessing abortion may be exposed to additional health risks from the disease. ACOG has warned that “pregnant women are known to be at greater risk of severe morbidity and mortality from other respiratory infections such as influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population for COVID-19.”30
83. Absent an injunction, Plaintiffs will have no choice but to turn away patients in need of abortion care. Ohioans’ well-being and dignity would suffer irreparably. The Ban and applying the Director’s Order to ban surgical abortion violate the constitutional rights of Plaintiffs’ patients and irreparably harms them.
CLAIMS FOR RELIEF COUNT I
(Substantive Due Process – Six Week Ban) 84. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 83. 85. By prohibiting abortion prior to viability, the Ban violates Ohioans’ right to privacy guaranteed by the Fourteenth Amendment to the U.S. Constitution. 86. If the Ban is allowed to take effect, Plaintiffs’ patients will be subject to irreparable harm for which no adequate remedy at law exists by preventing Plaintiffs’ patients from obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional,
30 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (March 13, 2020), https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/novelcoronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnant-women-faq.html.
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medical, emotional, and other harm. COUNT II
(Substantive Due Process – Director’s Order) 87. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 86. 88. Applying the Director’s Order in a way that would ban surgical abortion violates Ohioans’ right to privacy guaranteed by the Fourteenth Amendment to the U.S. Constitution. 89. If Defendants’ efforts to enforce the Director’s Order to ban surgical abortion are not enjoined, Plaintiffs’ patients will be subject to irreparable harm for which no adequate remedy at law exists by preventing Plaintiffs’ patients from obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional, medical, emotional, and other harm.
COUNT III (Due Process – Vagueness – Director’s Order) 90. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 89. 91. Defendants have created ambiguity as to the circumstances in which Plaintiffs can provide surgical abortion as an “essential” surgery consistent with the Director’s Order, making it impossible for Plaintiffs to know what actions are forbidden or required. Plaintiffs therefore do not have adequate guidance as to how to comply with the Director’s Order. This lack of clarity invites arbitrary and discriminatory enforcement of the Director’s Order. 92. Plaintiffs are unable to determine how to comply with the Director’s Order, and yet face criminal penalties and the loss of facility and medical licenses. Therefore, Plaintiffs’ rights secured to them by the due process guarantees of the Fourteenth Amendment to the U.S. Constitution are violated.
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COUNT IV (Equal Protection – Director’s Order) 93. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 92. 94. By selectively burdening patients’ fundamental right to abortion without justification and singling abortion providers and their patients out for differential treatment from providers of other medical services and their patients, Defendants’ attempts to enforce the Director’s Order to ban surgical abortions violate Ohioans’ right to equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution. 95. Unless enjoined, Defendants will subject Plaintiffs and their patients to irreparable harm for which no adequate remedy at law exists by preventing patients from or significantly delaying them in obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional, medical, emotional, and other harm REQUEST FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A. To immediately issue a temporary restraining order and/or preliminary injunction, and later a permanent injunction, restraining Defendants, their employees, agents, and successors in office from enforcing the Ban. B. To immediately issue a temporary restraining order and/or preliminary injunction, and later a permanent injunction, restraining Defendants, their employees, agents, and successors in office from enforcing the Director’s Order to ban virtually all surgical abortions after 10 weeks LMP or under 10 weeks for whom surgical abortion is the more appropriate method. C. To enter a judgment declaring that the Ban and the application of the Director’s Order to ban surgical abortions violates the Fourteenth Amendment to the U.S. Constitution.
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Case: 1:19-cv-00360-MRB Doc #: 39-1 Filed: 03/30/20 Page: 31 of 67 PAGEID #: 432 C. To award Plaintiffs their attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. D. To grant such other and further relief as the Court deems just and proper.
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Dated: March 30, 2020
Elizabeth Watson* Rachel Reeves* Brigitte Amiri* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2633 (212) 549-2650 (fax) ewatson@aclu.org rreeves@aclu.org bamiri@aclu.org Counsel for Plaintiff Preterm-Cleveland and Northeast Ohio Women’s Center
Carrie Y. Flaxman Richard Muniz* Planned Parenthood Federation of America 1110 Vermont Ave NW, Suite 300 Washington, DC 20005 (202) 973-4800 (202) 296-3480 (fax) carrie.flaxman@ppfa.org*** richard.muniz@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, and Sharon Liner, M.D.
Hana Bajramovic*** Planned Parenthood Federation of America 123 William Street, Floor 9 New York, NY 10038 (212) 541-7800 (212) 247-6811 (fax) hana.bajramovic@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood Greater of Ohio, and Sharon Liner, M.D.

Respectfully Submitted,
/s/ B. Jessie Hill** B. Jessie Hill #0074770, Trial Attorney Freda J. Levenson #0045916 American Civil Liberties Union of Ohio, Foundation, Inc. 4506 Chester Ave. Cleveland, OH 44103 (216) 368-0553 – Jessie Hill (614) 586-1972 x 125 – Freda Levenson (614) 586-1974 (fax) bjh11@cwru.edu flevenson@acluohio.org Counsel for Plaintiff Preterm-Cleveland and Northeast Ohio Women’s Center
Jennifer L. Branch # 0038893 Alphonse A. Gerhardstein # 0032053 Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202 (513) 621-9100 (513) 345-5543 (fax) agerhardstein@gbfirm.com jbranch@gbfirm.com Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Sharon Liner, M.D., Women’s Med Group Professional Corporation and Capital Care Network of Toledo
*Applications for admission pro hac vice granted
** Cooperating Counsel for the ACLU of Ohio Foundation
*** Application for admission pro hac vice forthcoming

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EXHIBIT A

Case: 1:19-cv-00360-MRB Doc #: 39-1 Filed: 03/30/20 Page: 34 of 67 PAGEID #: 435
(133rd General Assembly) (Substitute Senate Bill Number 23)
AN ACT
To amend sections 2317.56, 2919.171, 2919.19, 2919.191, 2919.192, 2919.193, and 4731.22; to amend, for the purpose of adopting new section numbers as indicated in parentheses, sections 2919.191 (2919.192), 2919.192 (2919.194), and 2919.193 (2919.198); and to enact new sections 2919.191 and 2919.193 and sections 2919.195, 2919.196, 2919.197, 2919.199, 2919.1910, 2919.1912, 2919.1913, and 5103.11 of the Revised Code to enact the Human Rights and Heartbeat Protection Act.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 2317.56, 2919.171, 2919.19, 2919.191, 2919.192, 2919.193, and 4731.22 be amended; sections 2919.191 (2919.192), 2919.192 (2919.194), and 2919.193 (2919.198) be amended for the purpose of adopting new section numbers as shown in parentheses; and new sections 2919.191 and 2919.193 and sections 2919.195, 2919.196, 2919.197, 2919.199, 2919.1910, 2919.1912, 2919.1913, and 5103.11 of the Revised Code be enacted to read as follows:
Sec. 2317.56. (A) As used in this section: (1) "Medical emergency" has the same meaning as in section 2919.16 of the Revised Code. (2) "Medical necessity" means a medical condition of a pregnant woman that, in the reasonable judgment of the physician who is attending the woman, so complicates the pregnancy that it necessitates the immediate performance or inducement of an abortion. (3) "Probable gestational age of the embryo or fetus" means the gestational age that, in the judgment of a physician, is, with reasonable probability, the gestational age of the embryo or fetus at the time that the physician informs a pregnant woman pursuant to division (B)(1)(b) of this section. (B) Except when there is a medical emergency or medical necessity, an abortion shall be performed or induced only if all of the following conditions are satisfied: (1) At least twenty-four hours prior to the performance or inducement of the abortion, a physician meets with the pregnant woman in person in an individual, private setting and gives her an adequate opportunity to ask questions about the abortion that will be performed or induced. At this meeting, the physician shall inform the pregnant woman, verbally or, if she is hearing impaired, by other means of communication, of all of the following: (a) The nature and purpose of the particular abortion procedure to be used and the medical risks associated with that procedure; (b) The probable gestational age of the embryo or fetus; (c) The medical risks associated with the pregnant woman carrying the pregnancy to term. The meeting need not occur at the facility where the abortion is to be performed or induced, and the physician involved in the meeting need not be affiliated with that facility or with the

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Sub. S. B. No. 23 2

133rd G.A.

physician who is scheduled to perform or induce the abortion. (2) At least twenty-four hours prior to the performance or inducement of the abortion, the
physician who is to perform or induce the abortion or the physician's agent does each of the following in person, by telephone, by certified mail, return receipt requested, or by regular mail evidenced by a certificate of mailing:
(a) Inform the pregnant woman of the name of the physician who is scheduled to perform or induce the abortion;
(b) Give the pregnant woman copies of the published materials described in division (C) of this section;
(c) Inform the pregnant woman that the materials given pursuant to division (B)(2)(b) of this section are published by the state and that they describe the embryo or fetus and list agencies that offer alternatives to abortion. The pregnant woman may choose to examine or not to examine the materials. A physician or an agent of a physician may choose to be disassociated from the materials and may choose to comment or not comment on the materials.
(3) If it has been determined that the unborn human individual the pregnant woman is carrying has a detectable fetal heartbeat, the physician who is to perform or induce the abortion shall comply with the informed consent requirements in section 2919.192 2919.194 of the Revised Code in addition to complying with the informed consent requirements in divisions (B)(1), (2), (4), and (5) of this section.
(4) Prior to the performance or inducement of the abortion, the pregnant woman signs a form consenting to the abortion and certifies both of the following on that form:
(a) She has received the information and materials described in divisions (B)(1) and (2) of this section, and her questions about the abortion that will be performed or induced have been answered in a satisfactory manner.
(b) She consents to the particular abortion voluntarily, knowingly, intelligently, and without coercion by any person, and she is not under the influence of any drug of abuse or alcohol.
The form shall contain the name and contact information of the physician who provided to the pregnant woman the information described in division (B)(1) of this section.
(5) Prior to the performance or inducement of the abortion, the physician who is scheduled to perform or induce the abortion or the physician's agent receives a copy of the pregnant woman's signed form on which she consents to the abortion and that includes the certification required by division (B)(4) of this section.
(C) The department of health shall publish in English and in Spanish, in a typeface large enough to be clearly legible, and in an easily comprehensible format, the following materials on the department's web site:
(1) Materials that inform the pregnant woman about family planning information, of publicly funded agencies that are available to assist in family planning, and of public and private agencies and services that are available to assist her through the pregnancy, upon childbirth, and while the child is dependent, including, but not limited to, adoption agencies. The materials shall be geographically indexed; include a comprehensive list of the available agencies, a description of the services offered by the agencies, and the telephone numbers and addresses of the agencies; and inform the pregnant woman about available medical assistance benefits for prenatal care, childbirth, and neonatal care

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Sub. S. B. No. 23 3

133rd G.A.

and about the support obligations of the father of a child who is born alive. The department shall ensure that the materials described in division (C)(1) of this section are comprehensive and do not directly or indirectly promote, exclude, or discourage the use of any agency or service described in this division.
(2) Materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the zygote, blastocyte, embryo, or fetus at two-week gestational increments for the first sixteen weeks of pregnancy and at four-week gestational increments from the seventeenth week of pregnancy to full term, including any relevant information regarding the time at which the fetus possibly would be viable. The department shall cause these materials to be published only after it consults with the Ohio state medical association and the Ohio section of the American college of obstetricians and gynecologists independent health care experts relative to the probable anatomical and physiological characteristics of a zygote, blastocyte, embryo, or fetus at the various gestational increments. The materials shall use language that is understandable by the average person who is not medically trained, shall be objective and nonjudgmental, and shall include only accurate scientific information about the zygote, blastocyte, embryo, or fetus at the various gestational increments. If the materials use a pictorial, photographic, or other depiction to provide information regarding the zygote, blastocyte, embryo, or fetus, the materials shall include, in a conspicuous manner, a scale or other explanation that is understandable by the average person and that can be used to determine the actual size of the zygote, blastocyte, embryo, or fetus at a particular gestational increment as contrasted with the depicted size of the zygote, blastocyte, embryo, or fetus at that gestational increment.
(D) Upon the submission of a request to the department of health by any person, hospital, physician, or medical facility for one copy of the materials published in accordance with division (C) of this section, the department shall make the requested copy of the materials available to the person, hospital, physician, or medical facility that requested the copy.
(E) If a medical emergency or medical necessity compels the performance or inducement of an abortion, the physician who will perform or induce the abortion, prior to its performance or inducement if possible, shall inform the pregnant woman of the medical indications supporting the physician's judgment that an immediate abortion is necessary. Any physician who performs or induces an abortion without the prior satisfaction of the conditions specified in division (B) of this section because of a medical emergency or medical necessity shall enter the reasons for the conclusion that a medical emergency or medical necessity exists in the medical record of the pregnant woman.
(F) If the conditions specified in division (B) of this section are satisfied, consent to an abortion shall be presumed to be valid and effective.
(G) The performance or inducement of an abortion without the prior satisfaction of the conditions specified in division (B) of this section does not constitute, and shall not be construed as constituting, a violation of division (A) of section 2919.12 of the Revised Code. The failure of a physician to satisfy the conditions of division (B) of this section prior to performing or inducing an abortion upon a pregnant woman may be the basis of both of the following:
(1) A civil action for compensatory and exemplary damages as described in division (H) of this section;

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(2) Disciplinary action under section 4731.22 of the Revised Code. (H)(1) Subject to divisions (H)(2) and (3) of this section, any physician who performs or induces an abortion with actual knowledge that the conditions specified in division (B) of this section have not been satisfied or with a heedless indifference as to whether those conditions have been satisfied is liable in compensatory and exemplary damages in a civil action to any person, or the representative of the estate of any person, who sustains injury, death, or loss to person or property as a result of the failure to satisfy those conditions. In the civil action, the court additionally may enter any injunctive or other equitable relief that it considers appropriate. (2) The following shall be affirmative defenses in a civil action authorized by division (H)(1) of this section: (a) The physician performed or induced the abortion under the circumstances described in division (E) of this section. (b) The physician made a good faith effort to satisfy the conditions specified in division (B) of this section. (3) An employer or other principal is not liable in damages in a civil action authorized by division (H)(1) of this section on the basis of the doctrine of respondeat superior unless either of the following applies: (a) The employer or other principal had actual knowledge or, by the exercise of reasonable diligence, should have known that an employee or agent performed or induced an abortion with actual knowledge that the conditions specified in division (B) of this section had not been satisfied or with a heedless indifference as to whether those conditions had been satisfied. (b) The employer or other principal negligently failed to secure the compliance of an employee or agent with division (B) of this section. (4) Notwithstanding division (E) of section 2919.12 of the Revised Code, the civil action authorized by division (H)(1) of this section shall be the exclusive civil remedy for persons, or the representatives of estates of persons, who allegedly sustain injury, death, or loss to person or property as a result of a failure to satisfy the conditions specified in division (B) of this section. (I) The department of job and family services shall prepare and conduct a public information program to inform women of all available governmental programs and agencies that provide services or assistance for family planning, prenatal care, child care, or alternatives to abortion. Sec. 2919.171. (A)(1) A physician who performs or induces or attempts to perform or induce an abortion on a pregnant woman shall submit a report to the department of health in accordance with the forms, rules, and regulations adopted by the department that includes all of the information the physician is required to certify in writing or determine under sections section 2919.17 and , section 2919.18, divisions (A) and (C) of section 2919.192, division (C) of section 2919.193, division (B) of section 2919.195, or division (A) of section 2919.196 of the Revised Code:. (2) If a person other than the physician described in division (A)(1) of this section makes or maintains a record required by sections 2919.192 to 2919.196 of the Revised Code on the physician's behalf or at the physician's direction, that person shall comply with the reporting requirement described in division (A)(1) of this section as if the person were the physician described in that division. (B) By September 30 of each year, the department of health shall issue a public report that

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provides statistics for the previous calendar year compiled from all of the reports covering that calendar year submitted to the department in accordance with this section for each of the items listed in division (A) of this section. The report shall also provide the statistics for each previous calendar year in which a report was filed with the department pursuant to this section, adjusted to reflect any additional information that a physician provides to the department in a late or corrected report. The department shall ensure that none of the information included in the report could reasonably lead to the identification of any pregnant woman upon whom an abortion is performed.
(C)(1) The physician shall submit the report described in division (A) of this section to the department of health within fifteen days after the woman is discharged. If the physician fails to submit the report more than thirty days after that fifteen-day deadline, the physician shall be subject to a late fee of five hundred dollars for each additional thirty-day period or portion of a thirty-day period the report is overdue. A physician who is required to submit to the department of health a report under division (A) of this section and who has not submitted a report or has submitted an incomplete report more than one year following the fifteen-day deadline may, in an action brought by the department of health, be directed by a court of competent jurisdiction to submit a complete report to the department of health within a period of time stated in a court order or be subject to contempt of court.
(2) If a physician fails to comply with the requirements of this section, other than filing a late report with the department of health, or fails to submit a complete report to the department of health in accordance with a court order, the physician is subject to division (B)(44) of section 4731.22 of the Revised Code.
(3) No person shall falsify any report required under this section. Whoever violates this division is guilty of abortion report falsification, a misdemeanor of the first degree.
(D) Within ninety days of October 20, 2011, the The department of health shall adopt rules pursuant to section 111.15 of the Revised Code to assist in compliance with this section.
Sec. 2919.19. (A) As used in this section and sections 2919.191 to 2919.193 2919.1910 of the Revised Code:
(A) (1) "Conception" means fertilization. (2) "Contraceptive" means a drug, device, or chemical that prevents conception. (3) "DNA" means deoxyribonucleic acid. (4) "Fetal heartbeat" means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac. (B) (5) "Fetus" means the human offspring developing during pregnancy from the moment of conception and includes the embryonic stage of development. (C) (6) "Gestational age" means the age of an unborn human individual as calculated from the first day of the last menstrual period of a pregnant woman. (D) (7) "Gestational sac" means the structure that comprises the extraembryonic membranes that envelop the fetus and that is typically visible by ultrasound after the fourth week of pregnancy. (E) (8) "Intrauterine pregnancy" means a pregnancy in which the fetus is attached to the placenta within the uterus of the pregnant woman. (9) "Medical emergency" has the same meaning as in section 2919.16 of the Revised Code. (F) (10) "Physician" has the same meaning as in section 2305.113 of the Revised Code.

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(G) (11) "Pregnancy" means the human female reproductive condition that begins with fertilization, when the woman is carrying the developing human offspring, and that is calculated from the first day of the last menstrual period of the woman.
(H) (12) "Serious risk of the substantial and irreversible impairment of a major bodily function" has the same meaning as in section 2919.16 of the Revised Code.
(I) (13) "Spontaneous miscarriage" means the natural or accidental termination of a pregnancy and the expulsion of the fetus, typically caused by genetic defects in the fetus or physical abnormalities in the pregnant woman.
(14) "Standard medical practice" means the degree of skill, care, and diligence that a physician of the same medical specialty would employ in like circumstances. As applied to the method used to determine the presence of a fetal heartbeat for purposes of section 2919.191 2919.192 of the Revised Code, "standard medical practice" includes employing the appropriate means of detection depending on the estimated gestational age of the fetus and the condition of the woman and her pregnancy.
(J) (15) "Unborn human individual" means an individual organism of the species homo sapiens from fertilization until live birth.
(B)(1) It is the intent of the general assembly that a court judgment or order suspending enforcement of any provision of this section or sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code is not to be regarded as tantamount to repeal of that provision.
(2) Upon the issuance of any court order or judgment restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, or the effective date of an amendment to the United States Constitution restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, the attorney general may apply to the pertinent state or federal court for either or both of the following:
(a) A declaration that any one or more sections specified in division (B)(1) of this section are constitutional;
(b) A judgment or order lifting an injunction against the enforcement of any one or more sections specified in division (B)(1) of this section.
(3) If the attorney general fails to apply for the relief described in division (B)(2) of this section within the thirty-day period after an event described in that division occurs, any county prosecutor, with standing, may apply to the appropriate state or federal court for such relief.
(4) If any provision of this section or sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code is held invalid, or if the application of such provision to any person or circumstance is held invalid, the invalidity of that provision does not affect any other provisions or applications of this section and sections 2919.171 and 2919.191 to 2919.1913 of the Revised Code that can be given effect without the invalid provision or application, and to this end the provisions of this section and sections 2919.171 and 2919.191 to 2919.1913 of the Revised Code are severable as provided in section 1.50 of the Revised Code. In particular, it is the intent of the general assembly that any invalidity or potential invalidity of a provision of this section or sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code is not to impair the immediate and continuing enforceability of the remaining provisions. It is furthermore the intent of the general assembly that the provisions of this section and sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code are not to have the

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effect of repealing or limiting any other laws of this state, except as specified by this section and sections 2919.171 and 2919.191 to 2919.1913 of the Revised Code.
Sec. 2919.191. Sections 2919.192 to 2919.195 of the Revised Code apply only to intrauterine pregnancies.
Sec. 2919.191 2919.192. (A) A person who intends to perform or induce an abortion on a pregnant woman shall determine whether there is a detectable fetal heartbeat of the unborn human individual the pregnant woman is carrying. The method of determining the presence of a fetal heartbeat shall be consistent with the person's good faith understanding of standard medical practice, provided that if rules have been adopted under division (C) (B) of this section, the method chosen shall be one that is consistent with the rules. The person who determines the presence or absence of a fetal heartbeat shall record in the pregnant woman's medical record the estimated gestational age of the unborn human individual, the method used to test for a fetal heartbeat, the date and time of the test, and the results of the test.
(B)(1) Except when a medical emergency exists that prevents compliance with this division, no person shall perform or induce an abortion on a pregnant woman prior to determining if the unborn human individual the pregnant woman is carrying has a detectable fetal heartbeat. Any person who performs or induces an abortion on a pregnant woman based on the exception in this division shall note in the pregnant woman's medical records that a medical emergency necessitating the abortion existed and shall also note the medical condition of the pregnant woman that prevented compliance with this division. The person shall maintain a copy of the notes described in this division in the person's own records for at least seven years after the notes are entered into the medical records.
(2) 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.
(C) The (B) Not later than one hundred twenty days of the effective date of S.B. 23 of the 133rd general assembly, the director of health may promulgate shall adopt rules pursuant to section 111.15 of the Revised Code specifying the appropriate methods of performing an examination for the purpose of determining the presence of a fetal heartbeat of an unborn individual based on standard medical practice. The rules shall require only that an examination shall be performed externally.
(D) (C) A person is not in violation of division (A) or (B) of this section if that person has performed an examination for the purpose of determining the presence of a fetal heartbeat in the fetus of an unborn human individual utilizing standard medical practice in accordance with rules adopted under division (B) of this section, that examination does not reveal a fetal heartbeat or the person has been informed by a physician who has performed the examination for a fetal heartbeat that the examination did not reveal a fetal heartbeat, and the person notes in the pregnant woman's medical records the procedure utilized to detect the presence of a fetal heartbeat.
(E) Except as provided in division (F) of this section, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman before determining in accordance with division (A) of this section whether the unborn human individual the pregnant woman is carrying has a detectable heartbeat. The failure of a person to satisfy the requirements of this section prior to performing or inducing an abortion on a pregnant woman may be the basis for either of the following:

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(1) A civil action for compensatory and exemplary damages; (2) Disciplinary action under section 4731.22 of the Revised Code. (F) Division (E) of this section does not apply to a physician who performs or induces the abortion if the physician believes that a medical emergency exists that prevents compliance with that division. (G) The director of health may determine and specify in rules adopted pursuant to section 111.15 of the Revised Code and based upon available medical evidence the statistical probability of bringing an unborn human individual to term based on the gestational age of an unborn human individual who possesses a detectable fetal heartbeat. (H) A woman on whom an abortion is performed in violation of division (B) of this section or division (B)(3) of section 2317.56 of the Revised Code may file a civil action for the wrongful death of the woman's unborn child and may receive at the mother's election at any time prior to final judgment damages in an amount equal to ten thousand dollars or an amount determined by the trier of fact after consideration of the evidence subject to the same defenses and requirements of proof, except any requirement of live birth, as would apply to a suit for the wrongful death of a child who had been born alive. Sec. 2919.193. (A) Except as provided in division (B) of this section, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman before determining in accordance with division (A) of section 2919.192 of the Revised Code whether the unborn human individual the pregnant woman is carrying has a detectable heartbeat. Whoever violates this division is guilty of performing or inducing an abortion before determining whether there is a detectable fetal heartbeat, a felony of the fifth degree. A violation of this division may also be the basis of either of the following: (1) A civil action for compensatory and exemplary damages; (2) Disciplinary action under section 4731.22 of the Revised Code. (B) Division (A) of this section does not apply to a physician who performs or induces the abortion if the physician believes that a medical emergency, as defined in section 2919.16 of the Revised Code, exists that prevents compliance with that division. (C) A physician who performs or induces an abortion on a pregnant woman based on the exception in division (B) of this section shall make written notations in the pregnant woman's medical records of both of the following: (1) The physician's belief that a medical emergency necessitating the abortion existed; (2) The medical condition of the pregnant woman that assertedly prevented compliance with division (A) of this section. For at least seven years from the date the notations are made, the physician shall maintain in the physician's own records a copy of the notations. (D) A person is not in violation of division (A) of this section if the person acts in accordance with division (A) of section 2919.192 of the Revised Code and the method used to determine the presence of a fetal heartbeat does not reveal a fetal heartbeat. Sec. 2919.192 2919.194. (A) If Notwithstanding division (A)(3) of this section, if a person who intends to perform or induce an abortion on a pregnant woman has determined, under section 2919.191 2919.192 of the Revised Code, that the unborn human individual the pregnant woman is

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carrying has a detectable heartbeat, the person shall not, except as provided in division (B) of this section, perform or induce the abortion until without meeting all of the following requirements have been met and without at least twenty-four hours have elapsed elapsing after the last of the requirements is met:
(1) The person intending to perform or induce the abortion shall inform the pregnant woman in writing that the unborn human individual the pregnant woman is carrying has a fetal heartbeat.
(2) The person intending to perform or induce the abortion shall inform the pregnant woman, to the best of the person's knowledge, of the statistical probability of bringing the unborn human individual possessing a detectable fetal heartbeat to term based on the gestational age of the unborn human individual the pregnant woman is carrying or, if the director of health has specified statistical probability information pursuant to rules adopted under division (C) of this section, shall provide to the pregnant woman that information.
(3) The pregnant woman shall sign a form acknowledging that the pregnant woman has received information from the person intending to perform or induce the abortion that the unborn human individual the pregnant woman is carrying has a fetal heartbeat and that the pregnant woman is aware of the statistical probability of bringing the unborn human individual the pregnant woman is carrying to term.
(B) Division (A) of this section does not apply if the person who intends to perform or induce the abortion believes that a medical emergency exists that prevents compliance with that division.
(C) The director of health may adopt rules that specify information regarding the statistical probability of bringing an unborn human individual possessing a detectable heartbeat to term based on the gestational age of the unborn human individual. The rules shall be based on available medical evidence and shall be adopted in accordance with section 111.15 of the Revised Code.
(D) This section does not have the effect of repealing or limiting any other provision of the Revised Code relating to informed consent for an abortion, including the provisions in section 2317.56 of the Revised Code.
(E) Whoever violates division (A) of this section 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.
Sec. 2919.195. (A) Except as provided in division (B) of this section, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the unborn human individual the pregnant woman is carrying and whose fetal heartbeat has been detected in accordance with division (A) of section 2919.192 of the Revised Code.
Whoever violates this division is guilty of performing or inducing an abortion after the detection of a fetal heartbeat, a felony of the fifth degree.
(B) Division (A) of this section does not apply to a physician who performs a medical procedure that, in the physician's reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
A physician who performs a medical procedure as described in this division shall declare, in a written document, that the medical procedure is necessary, to the best of the physician's reasonable

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medical judgment, to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. In the document, the physician shall specify the pregnant woman's medical condition that the medical procedure is asserted to address and the medical rationale for the physician's conclusion that the medical procedure is necessary to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
A physician who performs a medical procedure as described in this division shall place the written document required by this division in the pregnant woman's medical records. The physician shall maintain a copy of the document in the physician's own records for at least seven years from the date the document is created.
(C) A person is not in violation of division (A) of this section if the person acts in accordance with division (A) of section 2919.192 of the Revised Code and the method used to determine the presence of a fetal heartbeat does not reveal a fetal heartbeat.
(D) Division (A) of this section does not have the effect of repealing or limiting any other provision of the Revised Code that restricts or regulates the performance or inducement of an abortion by a particular method or during a particular stage of a pregnancy.
Sec. 2919.196. The provisions of this section are wholly independent of the requirements of sections 2919.192 to 2919.195 of the Revised Code.
(A) A person who performs or induces an abortion on a pregnant woman shall do whichever of the following is applicable:
(1) If a purported reason for the abortion is to preserve the health of the pregnant woman, the person shall specify in a written document the medical condition that the abortion is asserted to address and the medical rationale for the person's conclusion that the abortion is necessary to address that condition.
(2) If division (A)(1) of this section does not apply, the person shall specify in a written document that maternal health is not a reason of the abortion.
(B) The person who specifies the information in the document described in division (A) of this section shall place the document in the pregnant woman's medical records. The person who specifies the information shall maintain a copy of the document in the person's own records for at least seven years from the date the document is created.
Sec. 2919.197. Nothing in sections 2919.19 to 2919.196 of the Revised Code prohibits the sale, use, prescription, or administration of a drug, device, or chemical for contraceptive purposes.
Sec. 2919.193 2919.198. A pregnant woman on whom an abortion is performed or induced in violation of section 2919.191 or 2919.192 2919.193, 2919.194, or 2919.195 of the Revised Code is not guilty of violating any of those sections; is not guilty of attempting to commit, conspiring to commit, or complicity in committing a violation of any of those sections; and is not subject to a civil penalty based on the abortion being performed or induced in violation of any of those sections.
Sec. 2919.199. (A) A woman who meets either or both of the following criteria may file a civil action for the wrongful death of her unborn child:
(1) A woman on whom an abortion was performed or induced in violation of division (A) of section 2919.193 or division (A) of section 2919.195 of the Revised Code;
(2) A woman on whom an abortion was performed or induced who was not given the

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information described in divisions (A)(1) and (2) of section 2919.194 of the Revised Code or who did not sign a form described in division (A)(3) of section 2919.194 of the Revised code.
(B) A woman who prevails in an action filed under division (A) of this section shall receive both of the following from the person who committed the one or more acts described in division (A) (1) or (2) of this section:
(1) Damages in an amount equal to ten thousand dollars or an amount determined by the trier of fact after consideration of the evidence at the mother's election at any time prior to final judgment subject to the same defenses and requirements of proof, except any requirement of live birth, as would apply to a suit for the wrongful death of a child who had been born alive;
(2) Court costs and reasonable attorney's fees. (C) A determination by a court of record that division (A) of section 2919.193 of the Revised Code, division (A)(1), (2), or (3) of section 2919.194 of the Revised Code, or division (A) of section 2919.195 of the Revised Code is unconstitutional shall be a defense to an action filed under division (A) of this section alleging that the defendant violated the division that was determined to be unconstitutional. (D) If the defendant in an action filed under division (A) of this section prevails and all of the following apply the court shall award reasonable attorney's fees to the defendant in accordance with section 2323.51 of the Revised Code: (1) The court finds that the commencement of the action constitutes frivolous conduct, as defined in section 2323.51 of the Revised Code. (2) The court's finding in division (D)(1) of this section is not based on that court or another court determining that division (A) of section 2919.193 of the Revised Code, division (A)(1), (2), or (3) of section 2919.194 of the Revised Code, or division (A) of section 2919.195 of the Revised Code is unconstitutional. (3) The court finds that the defendant was adversely affected by the frivolous conduct. Sec. 2919.1910. (A) To ensure that citizens are informed of available options in this state, there is hereby created the joint legislative committee on adoption promotion and support. The committee may review or study any matter that it considers relevant to the adoption process in this state, with priority given to the study or review of mechanisms intended to increase awareness of the process, increase its effectiveness, or both. (B) The committee shall consist of three members of the house of representatives appointed by the speaker of the house of representatives and three members of the senate appointed by the president of the senate. Not more than two members appointed by the speaker of the house of representatives and not more than two members appointed by the president of the senate may be of the same political party. Each member of the committee shall hold office during the general assembly in which the member is appointed and until a successor has been appointed, notwithstanding the adjournment sine die of the general assembly in which the member was appointed or the expiration of the member's term as a member of the general assembly. Any vacancies occurring among the members of the committee shall be filled in the manner of the original appointment. (C) The committee has the same powers as other standing or select committees of the general assembly.

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Sec. 2919.1912. (A) The state medical board may assess against a person a forfeiture of not more than twenty thousand dollars for each separate violation or failure of the person to comply with any of the requirements of sections 2919.171, 2919.192, 2919.193, 2919.194, 2919.195, or 2919.196 of the Revised Code. The board shall comply with the adjudication requirements of Chapter 119. of the Revised Code when assessing the forfeiture. The forfeiture may be in addition to criminal penalties that are imposed under other sections of the Revised Code.
(B) An action to recover a forfeiture shall be prosecuted in the name of the state and shall be brought in the court of common pleas of Franklin county. The action shall be commenced and prosecuted by the attorney general when directed by the board.
(C) Moneys collected under division (A) of this section or recovered by an action under division (B) of this section shall be paid to the treasurer of state for deposit into the foster care and adoption initiatives fund created under section 5103.11 of the Revised Code.
Sec. 2919.1913. Sections 2919.171, 2919.19 to 2919.1913, and 4731.22 of the Revised Code, as amended or enacted by this act, shall be known as the "Human Rights and Heartbeat Protection Act."
Sec. 4731.22. (A) The state medical board, by an affirmative vote of not fewer than six of its members, may limit, revoke, or suspend a license or certificate to practice or certificate to recommend, refuse to grant a license or certificate, refuse to renew a license or certificate, refuse to reinstate a license or certificate, or reprimand or place on probation the holder of a license or certificate if the individual applying for or holding the license or certificate is found by the board to have committed fraud during the administration of the examination for a license or certificate to practice or to have committed fraud, misrepresentation, or deception in applying for, renewing, or securing any license or certificate to practice or certificate to recommend issued by the board.
(B) The board, by an affirmative vote of not fewer than six members, shall, to the extent permitted by law, limit, revoke, or suspend a license or certificate to practice or certificate to recommend, refuse to issue a license or certificate, refuse to renew a license or certificate, refuse to reinstate a license or certificate, or reprimand or place on probation the holder of a license or certificate for one or more of the following reasons:
(1) Permitting one's name or one's license or certificate to practice to be used by a person, group, or corporation when the individual concerned is not actually directing the treatment given;
(2) Failure to maintain minimal standards applicable to the selection or administration of drugs, or failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease;
(3) Except as provided in section 4731.97 of the Revised Code, selling, giving away, personally furnishing, prescribing, or administering drugs for other than legal and legitimate therapeutic purposes or a plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction of, a violation of any federal or state law regulating the possession, distribution, or use of any drug;
(4) Willfully betraying a professional confidence. For purposes of this division, "willfully betraying a professional confidence" does not include providing any information, documents, or reports under sections 307.621 to 307.629 of the Revised Code to a child fatality review board; does not include providing any information, documents, or

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reports to the director of health pursuant to guidelines established under section 3701.70 of the Revised Code; does not include written notice to a mental health professional under section 4731.62 of the Revised Code; and does not include the making of a report of an employee's use of a drug of abuse, or a report of a condition of an employee other than one involving the use of a drug of abuse, to the employer of the employee as described in division (B) of section 2305.33 of the Revised Code. Nothing in this division affects the immunity from civil liability conferred by section 2305.33 or 4731.62 of the Revised Code upon a physician who makes a report in accordance with section 2305.33 or notifies a mental health professional in accordance with section 4731.62 of the Revised Code. As used in this division, "employee," "employer," and "physician" have the same meanings as in section 2305.33 of the Revised Code.
(5) Making a false, fraudulent, deceptive, or misleading statement in the solicitation of or advertising for patients; in relation to the practice of medicine and surgery, osteopathic medicine and surgery, podiatric medicine and surgery, or a limited branch of medicine; or in securing or attempting to secure any license or certificate to practice issued by the board.
As used in this division, "false, fraudulent, deceptive, or misleading statement" means a statement that includes a misrepresentation of fact, is likely to mislead or deceive because of a failure to disclose material facts, is intended or is likely to create false or unjustified expectations of favorable results, or includes representations or implications that in reasonable probability will cause an ordinarily prudent person to misunderstand or be deceived.
(6) A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established;
(7) Representing, with the purpose of obtaining compensation or other advantage as personal gain or for any other person, that an incurable disease or injury, or other incurable condition, can be permanently cured;
(8) The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice;
(9) A plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a felony;
(10) Commission of an act that constitutes a felony in this state, regardless of the jurisdiction in which the act was committed;
(11) A plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a misdemeanor committed in the course of practice;
(12) Commission of an act in the course of practice that constitutes a misdemeanor in this state, regardless of the jurisdiction in which the act was committed;
(13) A plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a misdemeanor involving moral turpitude;
(14) Commission of an act involving moral turpitude that constitutes a misdemeanor in this state, regardless of the jurisdiction in which the act was committed;
(15) Violation of the conditions of limitation placed by the board upon a license or certificate to practice;
(16) Failure to pay license renewal fees specified in this chapter;

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(17) Except as authorized in section 4731.31 of the Revised Code, engaging in the division of fees for referral of patients, or the receiving of a thing of value in return for a specific referral of a patient to utilize a particular service or business;
(18) Subject to section 4731.226 of the Revised Code, violation of any provision of a code of ethics of the American medical association, the American osteopathic association, the American podiatric medical association, or any other national professional organizations that the board specifies by rule. The state medical board shall obtain and keep on file current copies of the codes of ethics of the various national professional organizations. The individual whose license or certificate is being suspended or revoked shall not be found to have violated any provision of a code of ethics of an organization not appropriate to the individual's profession.
For purposes of this division, a "provision of a code of ethics of a national professional organization" does not include any provision that would preclude the making of a report by a physician of an employee's use of a drug of abuse, or of a condition of an employee other than one involving the use of a drug of abuse, to the employer of the employee as described in division (B) of section 2305.33 of the Revised Code. Nothing in this division affects the immunity from civil liability conferred by that section upon a physician who makes either type of report in accordance with division (B) of that section. As used in this division, "employee," "employer," and "physician" have the same meanings as in section 2305.33 of the Revised Code.
(19) Inability to practice according to acceptable and prevailing standards of care by reason of mental illness or physical illness, including, but not limited to, physical deterioration that adversely affects cognitive, motor, or perceptive skills.
In enforcing this division, the board, upon a showing of a possible violation, may compel any individual authorized to practice by this chapter or who has submitted an application pursuant to this chapter to submit to a mental examination, physical examination, including an HIV test, or both a mental and a physical examination. The expense of the examination is the responsibility of the individual compelled to be examined. Failure to submit to a mental or physical examination or consent to an HIV test ordered by the board constitutes an admission of the allegations against the individual unless the failure is due to circumstances beyond the individual's control, and a default and final order may be entered without the taking of testimony or presentation of evidence. If the board finds an individual unable to practice because of the reasons set forth in this division, the board shall require the individual to submit to care, counseling, or treatment by physicians approved or designated by the board, as a condition for initial, continued, reinstated, or renewed authority to practice. An individual affected under this division shall be afforded an opportunity to demonstrate to the board the ability to resume practice in compliance with acceptable and prevailing standards under the provisions of the individual's license or certificate. For the purpose of this division, any individual who applies for or receives a license or certificate to practice under this chapter accepts the privilege of practicing in this state and, by so doing, shall be deemed to have given consent to submit to a mental or physical examination when directed to do so in writing by the board, and to have waived all objections to the admissibility of testimony or examination reports that constitute a privileged communication.
(20) Except as provided in division (F)(1)(b) of section 4731.282 of the Revised Code or when civil penalties are imposed under section 4731.225 of the Revised Code, and subject to section

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4731.226 of the Revised Code, violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provisions of this chapter or any rule promulgated by the board.
This division does not apply to a violation or attempted violation of, assisting in or abetting the violation of, or a conspiracy to violate, any provision of this chapter or any rule adopted by the board that would preclude the making of a report by a physician of an employee's use of a drug of abuse, or of a condition of an employee other than one involving the use of a drug of abuse, to the employer of the employee as described in division (B) of section 2305.33 of the Revised Code. Nothing in this division affects the immunity from civil liability conferred by that section upon a physician who makes either type of report in accordance with division (B) of that section. As used in this division, "employee," "employer," and "physician" have the same meanings as in section 2305.33 of the Revised Code.
(21) The violation of section 3701.79 of the Revised Code or of any abortion rule adopted by the director of health pursuant to section 3701.341 of the Revised Code;
(22) Any of the following actions taken by an agency responsible for authorizing, certifying, or regulating an individual to practice a health care occupation or provide health care services in this state or another jurisdiction, for any reason other than the nonpayment of fees: the limitation, revocation, or suspension of an individual's license to practice; acceptance of an individual's license surrender; denial of a license; refusal to renew or reinstate a license; imposition of probation; or issuance of an order of censure or other reprimand;
(23) The violation of section 2919.12 of the Revised Code or the performance or inducement of an abortion upon a pregnant woman with actual knowledge that the conditions specified in division (B) of section 2317.56 of the Revised Code have not been satisfied or with a heedless indifference as to whether those conditions have been satisfied, unless an affirmative defense as specified in division (H)(2) of that section would apply in a civil action authorized by division (H)(1) of that section;
(24) The revocation, suspension, restriction, reduction, or termination of clinical privileges by the United States department of defense or department of veterans affairs or the termination or suspension of a certificate of registration to prescribe drugs by the drug enforcement administration of the United States department of justice;
(25) Termination or suspension from participation in the medicare or medicaid programs by the department of health and human services or other responsible agency;
(26) Impairment of ability to practice according to acceptable and prevailing standards of care because of habitual or excessive use or abuse of drugs, alcohol, or other substances that impair ability to practice.
For the purposes of this division, any individual authorized to practice by this chapter accepts the privilege of practicing in this state subject to supervision by the board. By filing an application for or holding a license or certificate to practice under this chapter, an individual shall be deemed to have given consent to submit to a mental or physical examination when ordered to do so by the board in writing, and to have waived all objections to the admissibility of testimony or examination reports that constitute privileged communications.
If it has reason to believe that any individual authorized to practice by this chapter or any

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applicant for licensure or certification to practice suffers such impairment, the board may compel the individual to submit to a mental or physical examination, or both. The expense of the examination is the responsibility of the individual compelled to be examined. Any mental or physical examination required under this division shall be undertaken by a treatment provider or physician who is qualified to conduct the examination and who is chosen by the board.
Failure to submit to a mental or physical examination ordered by the board constitutes an admission of the allegations against the individual unless the failure is due to circumstances beyond the individual's control, and a default and final order may be entered without the taking of testimony or presentation of evidence. If the board determines that the individual's ability to practice is impaired, the board shall suspend the individual's license or certificate or deny the individual's application and shall require the individual, as a condition for initial, continued, reinstated, or renewed licensure or certification to practice, to submit to treatment.
Before being eligible to apply for reinstatement of a license or certificate suspended under this division, the impaired practitioner shall demonstrate to the board the ability to resume practice in compliance with acceptable and prevailing standards of care under the provisions of the practitioner's license or certificate. The demonstration shall include, but shall not be limited to, the following:
(a) Certification from a treatment provider approved under section 4731.25 of the Revised Code that the individual has successfully completed any required inpatient treatment;
(b) Evidence of continuing full compliance with an aftercare contract or consent agreement; (c) Two written reports indicating that the individual's ability to practice has been assessed and that the individual has been found capable of practicing according to acceptable and prevailing standards of care. The reports shall be made by individuals or providers approved by the board for making the assessments and shall describe the basis for their determination. The board may reinstate a license or certificate suspended under this division after that demonstration and after the individual has entered into a written consent agreement. When the impaired practitioner resumes practice, the board shall require continued monitoring of the individual. The monitoring shall include, but not be limited to, compliance with the written consent agreement entered into before reinstatement or with conditions imposed by board order after a hearing, and, upon termination of the consent agreement, submission to the board for at least two years of annual written progress reports made under penalty of perjury stating whether the individual has maintained sobriety. (27) A second or subsequent violation of section 4731.66 or 4731.69 of the Revised Code; (28) Except as provided in division (N) of this section: (a) Waiving the payment of all or any part of a deductible or copayment that a patient, pursuant to a health insurance or health care policy, contract, or plan that covers the individual's services, otherwise would be required to pay if the waiver is used as an enticement to a patient or group of patients to receive health care services from that individual; (b) Advertising that the individual will waive the payment of all or any part of a deductible or copayment that a patient, pursuant to a health insurance or health care policy, contract, or plan that covers the individual's services, otherwise would be required to pay. (29) Failure to use universal blood and body fluid precautions established by rules adopted under section 4731.051 of the Revised Code;

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(30) Failure to provide notice to, and receive acknowledgment of the notice from, a patient when required by section 4731.143 of the Revised Code prior to providing nonemergency professional services, or failure to maintain that notice in the patient's medical record;
(31) Failure of a physician supervising a physician assistant to maintain supervision in accordance with the requirements of Chapter 4730. of the Revised Code and the rules adopted under that chapter;
(32) Failure of a physician or podiatrist to enter into a standard care arrangement with a clinical nurse specialist, certified nurse-midwife, or certified nurse practitioner with whom the physician or podiatrist is in collaboration pursuant to section 4731.27 of the Revised Code or failure to fulfill the responsibilities of collaboration after entering into a standard care arrangement;
(33) Failure to comply with the terms of a consult agreement entered into with a pharmacist pursuant to section 4729.39 of the Revised Code;
(34) Failure to cooperate in an investigation conducted by the board under division (F) of this section, including failure to comply with a subpoena or order issued by the board or failure to answer truthfully a question presented by the board in an investigative interview, an investigative office conference, at a deposition, or in written interrogatories, except that failure to cooperate with an investigation shall not constitute grounds for discipline under this section if a court of competent jurisdiction has issued an order that either quashes a subpoena or permits the individual to withhold the testimony or evidence in issue;
(35) Failure to supervise an oriental medicine practitioner or acupuncturist in accordance with Chapter 4762. of the Revised Code and the board's rules for providing that supervision;
(36) Failure to supervise an anesthesiologist assistant in accordance with Chapter 4760. of the Revised Code and the board's rules for supervision of an anesthesiologist assistant;
(37) Assisting suicide, as defined in section 3795.01 of the Revised Code; (38) Failure to comply with the requirements of section 2317.561 of the Revised Code; (39) Failure to supervise a radiologist assistant in accordance with Chapter 4774. of the Revised Code and the board's rules for supervision of radiologist assistants; (40) Performing or inducing an abortion at an office or facility with knowledge that the office or facility fails to post the notice required under section 3701.791 of the Revised Code; (41) Failure to comply with the standards and procedures established in rules under section 4731.054 of the Revised Code for the operation of or the provision of care at a pain management clinic; (42) Failure to comply with the standards and procedures established in rules under section 4731.054 of the Revised Code for providing supervision, direction, and control of individuals at a pain management clinic; (43) Failure to comply with the requirements of section 4729.79 or 4731.055 of the Revised Code, unless the state board of pharmacy no longer maintains a drug database pursuant to section 4729.75 of the Revised Code; (44) Failure to comply with the requirements of section 2919.171, 2919.202, or 2919.203 of the Revised Code or failure to submit to the department of health in accordance with a court order a complete report as described in section 2919.171 or 2919.202 of the Revised Code; (45) Practicing at a facility that is subject to licensure as a category III terminal distributor of

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dangerous drugs with a pain management clinic classification unless the person operating the facility has obtained and maintains the license with the classification;
(46) Owning a facility that is subject to licensure as a category III terminal distributor of dangerous drugs with a pain management clinic classification unless the facility is licensed with the classification;
(47) Failure to comply with any of the requirement requirements regarding making or maintaining notes medical records or documents described in division (B) (A) of section 2919.191 2919.192, division (C) of section 2919.193, division (B) of section 2919.195, or division (A) of section 2919.196 of the Revised Code or failure to satisfy the requirements of section 2919.191 of the Revised Code prior to performing or inducing an abortion upon a pregnant woman;
(48) Failure to comply with the requirements in section 3719.061 of the Revised Code before issuing for a minor a prescription for an opioid analgesic, as defined in section 3719.01 of the Revised Code;
(49) Failure to comply with the requirements of section 4731.30 of the Revised Code or rules adopted under section 4731.301 of the Revised Code when recommending treatment with medical marijuana;
(50) Practicing at a facility, clinic, or other location that is subject to licensure as a category III terminal distributor of dangerous drugs with an office-based opioid treatment classification unless the person operating that place has obtained and maintains the license with the classification;
(51) Owning a facility, clinic, or other location that is subject to licensure as a category III terminal distributor of dangerous drugs with an office-based opioid treatment classification unless that place is licensed with the classification;
(52) A pattern of continuous or repeated violations of division (E)(2) or (3) of section 3963.02 of the Revised Code.
(C) Disciplinary actions taken by the board under divisions (A) and (B) of this section shall be taken pursuant to an adjudication under Chapter 119. of the Revised Code, except that in lieu of an adjudication, the board may enter into a consent agreement with an individual to resolve an allegation of a violation of this chapter or any rule adopted under it. A consent agreement, when ratified by an affirmative vote of not fewer than six members of the board, shall constitute the findings and order of the board with respect to the matter addressed in the agreement. If the board refuses to ratify a consent agreement, the admissions and findings contained in the consent agreement shall be of no force or effect.
A telephone conference call may be utilized for ratification of a consent agreement that revokes or suspends an individual's license or certificate to practice or certificate to recommend. The telephone conference call shall be considered a special meeting under division (F) of section 121.22 of the Revised Code.
If the board takes disciplinary action against an individual under division (B) of this section for a second or subsequent plea of guilty to, or judicial finding of guilt of, a violation of section 2919.123 of the Revised Code, the disciplinary action shall consist of a suspension of the individual's license or certificate to practice for a period of at least one year or, if determined appropriate by the board, a more serious sanction involving the individual's license or certificate to practice. Any consent agreement entered into under this division with an individual that pertains to a second or

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subsequent plea of guilty to, or judicial finding of guilt of, a violation of that section shall provide for a suspension of the individual's license or certificate to practice for a period of at least one year or, if determined appropriate by the board, a more serious sanction involving the individual's license or certificate to practice.
(D) For purposes of divisions (B)(10), (12), and (14) of this section, the commission of the act may be established by a finding by the board, pursuant to an adjudication under Chapter 119. of the Revised Code, that the individual committed the act. The board does not have jurisdiction under those divisions if the trial court renders a final judgment in the individual's favor and that judgment is based upon an adjudication on the merits. The board has jurisdiction under those divisions if the trial court issues an order of dismissal upon technical or procedural grounds.
(E) The sealing of conviction records by any court shall have no effect upon a prior board order entered under this section or upon the board's jurisdiction to take action under this section if, based upon a plea of guilty, a judicial finding of guilt, or a judicial finding of eligibility for intervention in lieu of conviction, the board issued a notice of opportunity for a hearing prior to the court's order to seal the records. The board shall not be required to seal, destroy, redact, or otherwise modify its records to reflect the court's sealing of conviction records.
(F)(1) The board shall investigate evidence that appears to show that a person has violated any provision of this chapter or any rule adopted under it. Any person may report to the board in a signed writing any information that the person may have that appears to show a violation of any provision of this chapter or any rule adopted under it. In the absence of bad faith, any person who reports information of that nature or who testifies before the board in any adjudication conducted under Chapter 119. of the Revised Code shall not be liable in damages in a civil action as a result of the report or testimony. Each complaint or allegation of a violation received by the board shall be assigned a case number and shall be recorded by the board.
(2) Investigations of alleged violations of this chapter or any rule adopted under it shall be supervised by the supervising member elected by the board in accordance with section 4731.02 of the Revised Code and by the secretary as provided in section 4731.39 of the Revised Code. The president may designate another member of the board to supervise the investigation in place of the supervising member. No member of the board who supervises the investigation of a case shall participate in further adjudication of the case.
(3) In investigating a possible violation of this chapter or any rule adopted under this chapter, or in conducting an inspection under division (E) of section 4731.054 of the Revised Code, the board may question witnesses, conduct interviews, administer oaths, order the taking of depositions, inspect and copy any books, accounts, papers, records, or documents, issue subpoenas, and compel the attendance of witnesses and production of books, accounts, papers, records, documents, and testimony, except that a subpoena for patient record information shall not be issued without consultation with the attorney general's office and approval of the secretary and supervising member of the board.
(a) Before issuance of a subpoena for patient record information, the secretary and supervising member shall determine whether there is probable cause to believe that the complaint filed alleges a violation of this chapter or any rule adopted under it and that the records sought are relevant to the alleged violation and material to the investigation. The subpoena may apply only to

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records that cover a reasonable period of time surrounding the alleged violation. (b) On failure to comply with any subpoena issued by the board and after reasonable notice to
the person being subpoenaed, the board may move for an order compelling the production of persons or records pursuant to the Rules of Civil Procedure.
(c) A subpoena issued by the board may be served by a sheriff, the sheriff's deputy, or a board employee or agent designated by the board. Service of a subpoena issued by the board may be made by delivering a copy of the subpoena to the person named therein, reading it to the person, or leaving it at the person's usual place of residence, usual place of business, or address on file with the board. When serving a subpoena to an applicant for or the holder of a license or certificate issued under this chapter, service of the subpoena may be made by certified mail, return receipt requested, and the subpoena shall be deemed served on the date delivery is made or the date the person refuses to accept delivery. If the person being served refuses to accept the subpoena or is not located, service may be made to an attorney who notifies the board that the attorney is representing the person.
(d) A sheriff's deputy who serves a subpoena shall receive the same fees as a sheriff. Each witness who appears before the board in obedience to a subpoena shall receive the fees and mileage provided for under section 119.094 of the Revised Code.
(4) All hearings, investigations, and inspections of the board shall be considered civil actions for the purposes of section 2305.252 of the Revised Code.
(5) A report required to be submitted to the board under this chapter, a complaint, or information received by the board pursuant to an investigation or pursuant to an inspection under division (E) of section 4731.054 of the Revised Code is confidential and not subject to discovery in any civil action.
The board shall conduct all investigations or inspections and proceedings in a manner that protects the confidentiality of patients and persons who file complaints with the board. The board shall not make public the names or any other identifying information about patients or complainants unless proper consent is given or, in the case of a patient, a waiver of the patient privilege exists under division (B) of section 2317.02 of the Revised Code, except that consent or a waiver of that nature is not required if the board possesses reliable and substantial evidence that no bona fide physician-patient relationship exists.
The board may share any information it receives pursuant to an investigation or inspection, including patient records and patient record information, with law enforcement agencies, other licensing boards, and other governmental agencies that are prosecuting, adjudicating, or investigating alleged violations of statutes or administrative rules. An agency or board that receives the information shall comply with the same requirements regarding confidentiality as those with which the state medical board must comply, notwithstanding any conflicting provision of the Revised Code or procedure of the agency or board that applies when it is dealing with other information in its possession. In a judicial proceeding, the information may be admitted into evidence only in accordance with the Rules of Evidence, but the court shall require that appropriate measures are taken to ensure that confidentiality is maintained with respect to any part of the information that contains names or other identifying information about patients or complainants whose confidentiality was protected by the state medical board when the information was in the board's possession. Measures to ensure confidentiality that may be taken by the court include sealing its records or

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deleting specific information from its records. (6) On a quarterly basis, the board shall prepare a report that documents the disposition of all
cases during the preceding three months. The report shall contain the following information for each case with which the board has completed its activities:
(a) The case number assigned to the complaint or alleged violation; (b) The type of license or certificate to practice, if any, held by the individual against whom the complaint is directed; (c) A description of the allegations contained in the complaint; (d) The disposition of the case. The report shall state how many cases are still pending and shall be prepared in a manner that protects the identity of each person involved in each case. The report shall be a public record under section 149.43 of the Revised Code. (G) If the secretary and supervising member determine both of the following, they may recommend that the board suspend an individual's license or certificate to practice or certificate to recommend without a prior hearing: (1) That there is clear and convincing evidence that an individual has violated division (B) of this section; (2) That the individual's continued practice presents a danger of immediate and serious harm to the public. Written allegations shall be prepared for consideration by the board. The board, upon review of those allegations and by an affirmative vote of not fewer than six of its members, excluding the secretary and supervising member, may suspend a license or certificate without a prior hearing. A telephone conference call may be utilized for reviewing the allegations and taking the vote on the summary suspension. The board shall issue a written order of suspension by certified mail or in person in accordance with section 119.07 of the Revised Code. The order shall not be subject to suspension by the court during pendency of any appeal filed under section 119.12 of the Revised Code. If the individual subject to the summary suspension requests an adjudicatory hearing by the board, the date set for the hearing shall be within fifteen days, but not earlier than seven days, after the individual requests the hearing, unless otherwise agreed to by both the board and the individual. Any summary suspension imposed under this division shall remain in effect, unless reversed on appeal, until a final adjudicative order issued by the board pursuant to this section and Chapter 119. of the Revised Code becomes effective. The board shall issue its final adjudicative order within seventy-five days after completion of its hearing. A failure to issue the order within seventy-five days shall result in dissolution of the summary suspension order but shall not invalidate any subsequent, final adjudicative order. (H) If the board takes action under division (B)(9), (11), or (13) of this section and the judicial finding of guilt, guilty plea, or judicial finding of eligibility for intervention in lieu of conviction is overturned on appeal, upon exhaustion of the criminal appeal, a petition for reconsideration of the order may be filed with the board along with appropriate court documents. Upon receipt of a petition of that nature and supporting court documents, the board shall reinstate the individual's license or certificate to practice. The board may then hold an adjudication under Chapter

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119. of the Revised Code to determine whether the individual committed the act in question. Notice of an opportunity for a hearing shall be given in accordance with Chapter 119. of the Revised Code. If the board finds, pursuant to an adjudication held under this division, that the individual committed the act or if no hearing is requested, the board may order any of the sanctions identified under division (B) of this section.
(I) The license or certificate to practice issued to an individual under this chapter and the individual's practice in this state are automatically suspended as of the date of the individual's second or subsequent plea of guilty to, or judicial finding of guilt of, a violation of section 2919.123 of the Revised Code. In addition, the license or certificate to practice or certificate to recommend issued to an individual under this chapter and the individual's practice in this state are automatically suspended as of the date the individual pleads guilty to, is found by a judge or jury to be guilty of, or is subject to a judicial finding of eligibility for intervention in lieu of conviction in this state or treatment or intervention in lieu of conviction in another jurisdiction for any of the following criminal offenses in this state or a substantially equivalent criminal offense in another jurisdiction: aggravated murder, murder, voluntary manslaughter, felonious assault, kidnapping, rape, sexual battery, gross sexual imposition, aggravated arson, aggravated robbery, or aggravated burglary. Continued practice after suspension shall be considered practicing without a license or certificate.
The board shall notify the individual subject to the suspension by certified mail or in person in accordance with section 119.07 of the Revised Code. If an individual whose license or certificate is automatically suspended under this division fails to make a timely request for an adjudication under Chapter 119. of the Revised Code, the board shall do whichever of the following is applicable:
(1) If the automatic suspension under this division is for a second or subsequent plea of guilty to, or judicial finding of guilt of, a violation of section 2919.123 of the Revised Code, the board shall enter an order suspending the individual's license or certificate to practice for a period of at least one year or, if determined appropriate by the board, imposing a more serious sanction involving the individual's license or certificate to practice.
(2) In all circumstances in which division (I)(1) of this section does not apply, enter a final order permanently revoking the individual's license or certificate to practice.
(J) If the board is required by Chapter 119. of the Revised Code to give notice of an opportunity for a hearing and if the individual subject to the notice does not timely request a hearing in accordance with section 119.07 of the Revised Code, the board is not required to hold a hearing, but may adopt, by an affirmative vote of not fewer than six of its members, a final order that contains the board's findings. In that final order, the board may order any of the sanctions identified under division (A) or (B) of this section.
(K) Any action taken by the board under division (B) of this section resulting in a suspension from practice shall be accompanied by a written statement of the conditions under which the individual's license or certificate to practice may be reinstated. The board shall adopt rules governing conditions to be imposed for reinstatement. Reinstatement of a license or certificate suspended pursuant to division (B) of this section requires an affirmative vote of not fewer than six members of the board.
(L) When the board refuses to grant or issue a license or certificate to practice to an applicant, revokes an individual's license or certificate to practice, refuses to renew an individual's license or

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certificate to practice, or refuses to reinstate an individual's license or certificate to practice, the board may specify that its action is permanent. An individual subject to a permanent action taken by the board is forever thereafter ineligible to hold a license or certificate to practice and the board shall not accept an application for reinstatement of the license or certificate or for issuance of a new license or certificate.
(M) Notwithstanding any other provision of the Revised Code, all of the following apply: (1) The surrender of a license or certificate issued under this chapter shall not be effective unless or until accepted by the board. A telephone conference call may be utilized for acceptance of the surrender of an individual's license or certificate to practice. The telephone conference call shall be considered a special meeting under division (F) of section 121.22 of the Revised Code. Reinstatement of a license or certificate surrendered to the board requires an affirmative vote of not fewer than six members of the board. (2) An application for a license or certificate made under the provisions of this chapter may not be withdrawn without approval of the board. (3) Failure by an individual to renew a license or certificate to practice in accordance with this chapter or a certificate to recommend in accordance with rules adopted under section 4731.301 of the Revised Code shall not remove or limit the board's jurisdiction to take any disciplinary action under this section against the individual. (4) At the request of the board, a license or certificate holder shall immediately surrender to the board a license or certificate that the board has suspended, revoked, or permanently revoked. (N) Sanctions shall not be imposed under division (B)(28) of this section against any person who waives deductibles and copayments as follows: (1) In compliance with the health benefit plan that expressly allows such a practice. Waiver of the deductibles or copayments shall be made only with the full knowledge and consent of the plan purchaser, payer, and third-party administrator. Documentation of the consent shall be made available to the board upon request. (2) For professional services rendered to any other person authorized to practice pursuant to this chapter, to the extent allowed by this chapter and rules adopted by the board. (O) Under the board's investigative duties described in this section and subject to division (F) of this section, the board shall develop and implement a quality intervention program designed to improve through remedial education the clinical and communication skills of individuals authorized under this chapter to practice medicine and surgery, osteopathic medicine and surgery, and podiatric medicine and surgery. In developing and implementing the quality intervention program, the board may do all of the following: (1) Offer in appropriate cases as determined by the board an educational and assessment program pursuant to an investigation the board conducts under this section; (2) Select providers of educational and assessment services, including a quality intervention program panel of case reviewers; (3) Make referrals to educational and assessment service providers and approve individual educational programs recommended by those providers. The board shall monitor the progress of each individual undertaking a recommended individual educational program. (4) Determine what constitutes successful completion of an individual educational program

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and require further monitoring of the individual who completed the program or other action that the board determines to be appropriate;
(5) Adopt rules in accordance with Chapter 119. of the Revised Code to further implement the quality intervention program.
An individual who participates in an individual educational program pursuant to this division shall pay the financial obligations arising from that educational program.
Sec. 5103.11. There is hereby created the foster care and adoption initiatives fund. The fund shall be in the custody of the treasurer of state, but shall not be part of the state treasury. The fund shall consist of moneys collected under section 2919.1912 of the Revised Code. All interest earned on the fund shall be credited to the fund. The purpose of the fund is to provide funding for foster care and adoption services and initiatives. The department of job and family services shall allocate moneys from the fund according to the following distribution:
(A) Fifty per cent of the moneys in the fund shall be used for foster care services and initiatives.
(B) Fifty per cent of the moneys in the fund shall be used for adoption services and initiatives.

SECTION 2. That existing sections 2317.56, 2919.171, 2919.19, 2919.191, 2919.192, 2919.193, and 4731.22 of the Revised Code are hereby repealed.

SECTION 3. The General Assembly hereby declares that it finds, according to contemporary medical research, all of the following:
(A) As many as thirty per cent of natural pregnancies end in spontaneous miscarriage. (B) Less than five per cent of all natural pregnancies end in spontaneous miscarriage after detection of fetal cardiac activity. (C) Over ninety per cent of in vitro pregnancies survive the first trimester if cardiac activity is detected in the gestational sac. (D) Nearly ninety per cent of in vitro pregnancies do not survive the first trimester where cardiac activity is not detected in the gestational sac. (E) Fetal heartbeat, therefore, has become a key medical predictor that an unborn human individual will reach live birth. (F) Cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac. (G) The State of Ohio has a valid interest in protecting the health of the woman. The State of Ohio has a compelling interest in protecting the life of an unborn human individual who may be born. (H) In order to make an informed choice about whether to continue her pregnancy, the pregnant woman has a valid interest in knowing the likelihood of the fetus surviving to full-term birth based upon the presence of cardiac activity. (I) The State of Ohio finds that the detection of a fetal heartbeat can be accomplished through standard medical practices.

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Sub. S. B. No. 23 25

133rd G.A.

(J) At fertilization, a human being emerges as a whole, genetically distinct, living human organism and needs only the proper environment to fully develop into a human.
(K) Cardiac activity shows that tissues have come together to form organs and the developing central nervous system signals the heart to autonomically beat.
(L) When a heartbeat is visualized at seven weeks or less, ninety-one and one-half per cent will survive the first trimester and ninety-five per cent of those will deliver live- born infants.
(M) After the detection of a fetal heartbeat there is a ninety-five to ninety-eight per cent certainty that the new life will develop full term.
(N) A human being at an embryonic age and a human being at an adult age are naturally the same, with the only biological differences being due to the differences in maturity.

SECTION 4. If any provisions of a section as amended or enacted by this act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable.

SECTION 5. Section 4731.22 of the Revised Code is presented in this act as a composite of the section as amended by both Am. Sub. H.B. 111 and Sub. H.B. 156 of the 132nd General Assembly. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the composite is the resulting version of the section in effect prior to the effective date of the section as presented in this act.

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Sub. S. B. No. 23

133rd G.A.

Speaker ___________________ of the House of Representatives.
President ___________________ of the Senate. Passed ________________________, 20____ Approved ________________________, 20____
Governor.

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Sub. S. B. No. 23

133rd G.A.

The section numbering of law of a general and permanent nature is complete and in conformity with the Revised Code.

Director, Legislative Service Commission.
Filed in the office of the Secretary of State at Columbus, Ohio, on the ____ day of ___________, A. D. 20____.

Secretary of State.

File No. _________

Effective Date ___________________

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EXHIBIT B

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Ohio Department of Health

Mike DeWine, Governor Jon Hustad, Lt. Governor

Amy Acton, M.D., MPH, Director

RE: Director's Order for the Management of Non-essential Surgeries and Procedures throughout Ohio
I, Amy Acton, MD, MPH, Director of the Ohio Department ofHealth (ODH), pursuant to the authority granted to me in R.C. 3701.13 to 'make special orders...for preventing the spread of contagious or infectious diseases" and for the purposes ofpreserving personal protective equipment (PPE) and critical hospital capacity and resources within Ohio, ORDER the following:
1. Effective 5:00p.m. Wednesday March 18,2020, all non-essential or elective surgeries and procedures that utilized PPE should not be conducted.
2. A non-essential surgery is a procedure that can be delayed without undue risk to the current or future health ofa patient. Examples of criteria to consider include:
a. Threat to the patient's life if surgery or procedure is not performed;
b. Threat ofpermanent dysfunction of an extremity or organ system; c. Risk ofmetastasis or progression of staging; or d. Risk ofrapidly worsening to severe symptoms (time sensitive)
3. Eliminate non-essential individuals from surgery/procedure rooms and patient care areas to preserve PPE. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required.
4. Each hospital and outpatient surgery or procedure provider, whether public, private, or nonprofit, shall establish an internal governance structure to ensure the principles outlined above are followed.
5. This action is taken to protect our healthcare workforce during this unprecedented event. This Order shall remain in full force and effect until the State of Emergency declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescitids or modifies this Order.
This Order take into consideration and is consistent with the Ohio Hospital Association's Implementing Guidelines for the Management ofNon-Essential Surgeries and Procedures Throughout Ohio dated March 16,2020.
COVID-19 is a respiratory disease that can result in serious illness or death, is caused by the SARS-CoV2 virus, which is a new strain of coronavirus that had not been previously identified in humans and can easily spread from person to person. The virus is spread between individuals who are in close contact with each other (within about six feet) through respiratory droplets produced when an infected person

246 North High Street Columbus, Ohio 43215 U.S.A.

6141466-3543 www.odh.ohio.gov

The State of Ohio is an Equal Opportunity Employer and Provider of ADA Services.

Exhibit B

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coughs or sneezes. It may be possible that individuals can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose or eyes.
On January 23,2020, the Ohio Department of Health issued a Director's Journal Entry making COVID19 a Class A reportable disease in Ohio.
On January 28, 2020, the Ohio Department of Health hosted the first statewide call with local health departments and healthcare providers regarding COVID-19.
On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization declared the outbreak of COVID-19 a public health emergency ofinternational concern.
On January 31,2020, Health and Human Services Secretary, Alex M. Azar II, declared a public health emergency for the United States to aid the nation's healthcare community in responding to COVID-19.
On February 1, 2020, the Ohio Department of Health issued a statewide Health Alert Network to provide local health departments and healthcare providers with updated guidance for COVID-19 and revised Person Under Investigation (PUI) criteria.
On February 3, 2020, the Ohio Department of Health trained over 140 personnel to staff a call center for COVID-19, in the event it was needed.
On February 5, 2020, the Ohio Department of Health began updating and notifying the media of the number ofPills in Ohio every Tuesday and Thursday.
On February 6, 2020, the Ohio Department of Health updated all agency assistant directors and chiefs of staffon COVID-19 preparedness and status during the Governor's cabinet meeting.
On February 7, 2020, the Ohio Department ofHealth and the Ohio Emergency Management Agency met to conduct advance planning for COVID-19.
On February 13, 2020, the Ohio Department of Health conducted a Pandemic Tabletop Exercise with State agencies to review responsive actions should there be a pandemic in Ohio.
On February 14, 2020, the Ohio Department of Health held a conference call with health professionals across the state. The purpose of the call was to inform and engage the healthcare community in Ohio. Presentations were provided by the Department ofHealth, Hamilton County Public Health, and the Ohio State University.
On February 27, 2020, the Ohio Department of Health and the Ohio Emergency Management Agency briefed the directors ofState agencies during the Governor's cabinet meeting regarding preparedness and the potential activation ofthe Emergency Operations Center.
On February 28, 2020, the "Governor DeWine, Health Director Update COVID-19 Prevention and Preparedness Plan" was sent to a broad range of associations representing healthcare, dental, long-term

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care, K-12 schools, colleges and universities, business, public transit, faith-based organizations, non-profit

On March 2, 2020, the Ohio Department of Heruth activated a Joint Information Center to coordinate COVID-19 communications.

On March 5, 2020, the Ohio Department of Heruth hosted the Governor's Summit on COVID-19 Preparedness, a meeting with the Governor, cabinet agency directors, locru heruth department commissioners, and their staff.

On March 6, 2020, the Ohio Department of Heruth opened a crul center to answer questions from the public regarding COVID-19.

On March 9, 2020, testing by the Department ofHeruth confirmed that three (3)

were positive for

COVID-19 in the State of Ohio. This confirms the presence of a potentiruly dangerous condition which

may affect the heruth, safety and welfare of citizens of Ohio.

On March 9, 2020, the Ohio Emergency Management Agency activated the Emergency Operations Center.

On March 9, 2020, the Governor Declared a State of Emergency in Executive Order 2020-01D.

On March 11, 2020, the head of the World Heruth Organization declared COVID-19 a pandemic.

On March 11, 2020, testing by the Ohio Department of Heruth confirmed that one (1) more patient was positive for COVID-19 in the State of Ohio.

On March 11, 2020, the Ohio

ofHeruth and Veterans Services issued a Joint Directors' Order

to limit access to Ohio nursing homes and similar facilities.

On March 15, 2020, the Ohio Department of Heruth issued a Director's Order to limit access to Ohio's jails and detention facilities.

On March 15, 2020, the Ohio Department ofHeruth issued a Director's Order to limit the sale offood and beverages, liquor, beer and wine to carry-out and delivery only.

On March 15,2020, the CDC issued Interim Guidance for mass gatherings or large community events,

stating that such

that consist of 50 or more people should be cancelled or postponed.

On March 15,2020, the Ohio Department ofHeruth issued a Director's Order closing polling stations.

Multiple areas ofthe United States are experiencing "community spread" ofthe virus that causes COVID19. Community spread, defined as the transmission of an illness for which the source is unknown, means that isolation ofknown areas ofinfection is no longer enough to control spread.

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The CDC reports that people are most contagious when they are most symptomatic (the sickest) however some spread might be possible before people show symptoms although that is not the main way the virus spreads.

Mass gatherings (50 or more persons) increase the risk of community transmission of the virus COVID19.

Accordingly, upon guidance from the U.S. Surgeon General, American College ofSurgeons and numerous other public health experts, I hereby ORDER, beginning at 5:00p.m. Wednesday, March 18, 2020 all non-essential surgeries and procedures are cancelled. A non-essential surgery is a procedure that can be delayed without undue risk to the current or future health of a patient. Examples of criteria to consider include: threat to the patient's life if surgery or procedure is not performed; Threat of permanent dysfunction ofan extremity or organ system; risk ofmetastasis or progression ofstaging; or risk ofrapidly worsening to severe symptoms (time sensitive). Eliminate non-essential individuals from surgery/procedure rooms and patient care areas to preserve PPE. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required. Each hospital and outpatient surgery or procedure provider shall establish an internal governance structure to ensure the principles outlined above are followed. The Order is issued for the purposes of preserving personal protective equipment (PPE) and critical hospital capacity and resources within Ohio. This action is taken to protect our healthcare workforce during this unprecedented event. This der shall remain in full force and effect until the State ofEmergency declared by the Governor no

lo ger e isf \

r: :

Department ofHealth rescinds or modifies this Order.

Y
Am '1\ct n, MD, MPH Director Health

March17, 2020

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EXHIBIT C

FORMS PUBLICATIONS CFAaQse: 1M:1ED9I-Acv-0C0O36N0TA-MCRT B Doc #: 39-1 Filed: 03/30/20 Page: 67 of 67 PAGEID #: 468
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Statement from AG Yost regarding Enforcement of Ohio Department of Health’s Order to Preserve Personal Protective Equipment During a Pandemic Emergency
3/25/2020

(COLUMBUS, Ohio) — The following statement may be attributed to Ohio Attorney General Dave Yost:
“Establishing roles in a crisis is critical. In the current COVID-19 crisis, the Attorney General’s ofﬁce plays a speciﬁc role. We are the prosecutor and the Ohio Department of Health is the police ofﬁcer. My ofﬁce will take quick enforcement action once an investigation is completed by the Department of Health, when facts to support a violation are determined, and a case is forwarded to my ofﬁce. That is the standard protocol.
In Ohio, the Attorney General’s ofﬁce lacks the extensive and explicit investigatory authority to independently take action with regard to this order. That authority lies with the Department of Health as the regulatory agency under Ohio Rev. Code 3701.04 and Ohio Admin. Code 3701-83-06. If the Department of Health determines through an investigation that Dr. Acton’s order was violated by any surgical facility in Ohio, my ofﬁce stands ready to play our role and pursue legal action on behalf of the Ohio Department of Health.
Complaints regarding possible violations of Dr. Acton’s order should be ﬁled with the Ohio Department of Health, as the department serves as the investigatory arm. In this instance, the attorney general plays the role of the prosecutor, not the cop.”
MEDIA CONTACT: Bethany McCorkle: 614-466-1339
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EXHIBIT B

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

PRETERM-CLEVELAND C/O B. JESSIE HILL ACLU of Ohio 4506 Chester Ave. Cleveland, OH 44103
PLANNED PARENTHOOD SOUTHWEST OHIO REGION C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
SHARON LINER, M.D. C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
PLANNED PARENTHOOD GREATER OHIO C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
WOMEN’S MED GROUP PROFESSIONAL CORPORATION C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
CAPITAL CARE NETWORK OF TOLEDO C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
NORTHEAST OHIO WOMEN’S CENTER C/O B. JESSIE HILL ACLU of Ohio 4506 Chester Ave. Cleveland, OH 44103

: Case No. 1:19-cv-00360 : : Judge: Michael R. Barrett : : : SUPPLEMENT TO VERIFIED : COMPLAINT FOR DECLARATORY : AND INJUNCTIVE RELIEF : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

Case: 1:19-cv-00360-MRB Doc #: 39-2 Filed: 03/30/20 Page: 3 of 33 PAGEID #: 471

Plaintiffs,

:

vs.

:

:

DAVID YOST

:

Attorney General of Ohio

:

30 E. Broad Street, 14th Floor

:

Columbus, OH 43215

:

:

AMY ACTON

:

Director, Ohio Department of Health

:

246 N. High Street

:

Columbus, OH 43215

:

:

KIM G. ROTHERMEL, M.D.

:

Secretary, State Medical Board of Ohio :

30 East Broad Street, 3rd Floor

:

Columbus, OH 43215

:

:

BRUCE R. SAFERIN, D.P.M.

:

Supervising Member, State Medical

:

Board of Ohio

:

30 East Broad Street, 3rd Floor

:

Columbus, OH 43215

:

:

MICHAEL C. O’MALLEY

:

Cuyahoga County Prosecutor

:

Justice Center Bld. Floor 8th and 9th

:

1200 Ontario Street

:

Cleveland, OH 44113

:

:

JOSEPH T. DETERS

:

Hamilton County Prosecutor

:

230 E. Ninth Street, Suite 4000

:

Cincinnati, OH 45202

:

:

RONALD O’BRIEN

:

Franklin County Prosecutor

:

373 S. High Street, 14th Floor

:

Columbus, OH 43215

:

:

GARY BISHOP

:

Richland County Prosecutor

:

38 South Park Street

:

Mansfield, OH 44902

:

:

PAUL J. GAINS

:

2

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Mahoning County Prosecutor

:

21 W. Boardman Street, 6th Floor

:

Youngstown, OH 44503

:

:

MATHIAS HECK, JR.

:

Montgomery County Prosecutor

:

301 W. Third St.

:

P.O. Box 972

:

Dayton, OH 45402

:

:

JULIA R. BATES

:

Lucas County Prosecutor

:

700 Adams Street, Suite 250

:

Toledo, OH 43604

:

:

SHERRI BEVAN WALSH

Summit County Prosecutor

53 University Ave.

Akron, Ohio 44308

Defendants.

SUPPLEMENTAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, by and through their attorneys, bring this Supplemental Complaint against the
above-named Defendants, their employees, agents, and successors in office, and in support thereof state the following:
INTRODUCTION 1. This is a constitutional challenge, under 42 U.S.C. § 1983, to Senate Bill 23, 133rd Gen. Assemb. (hereinafter “the Ban”), attached as Exhibit A. 2. This is also a constitutional challenge to the Ohio Health Director’s March 17, 2020 order entitled: “RE: Director’s Order for the Management of Non-essential Surgeries and Procedures throughout Ohio” (“Director’s Order”), as applied to surgical abortion procedures,

3

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attached as Exhibit B.1 1.3. In the absence of an injunction, the enforcement of the Director’s Order to ban
virtually all surgical abortion would ban the only abortion method available for all patients who are over 10 weeks pregnant and the only method available to some patients at any point in pregnancy.
2.4. For over forty-six years, U.S. law has recognized the fundamental federal constitutional right to make the profoundly important and personal decision whether or not to terminate a pregnancy. The U.S. Supreme Court has repeatedly recognized that this right is central to obtaining equality and respecting the dignity, autonomy, and bodily integrity of all individuals.
3.5. The decision to terminate a pregnancy is informed by a combination of diverse, complex, and interrelated factors that are intimately related to the individual’s values and beliefs, culture and religion, health status and reproductive history, familial situation, and resources and economic stability. In direct conflict with Roe v. Wade, 410 U.S. 113 (1973), and more than four decades of precedent affirming Roe’s central holding, the Ban criminalizes almost all previability abortions. Specifically, the Ban makes it a crime to perform an abortion after detection of cardiac activity, which generally occurs around six weeks in pregnancy, when many women2 are unaware they are pregnant. In so doing, the Ban prohibits approximately 90% of abortions
1 https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/directorsorder-non-essential-surgery-3-17-2020 2 Plaintiffs use “woman” or “women” in this complaint as a short-hand for people who are or may become pregnant, but note that people of all gender identities, including gender nonconforming people and transgender men, may also become pregnant and seek abortion services and would thus also suffer irreparable harm as a result of the Ban.
4

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currently performed in Ohio and violates Plaintiffs’ patients’ rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.
6. The Ohio Legislature passed the Ban on April 10, 2019, and Governor DeWine signed the Ban on April 11, 2019. If the Ban takes effect as scheduled on July 10, 2019, it will instantly criminalize the performance of almost all abortions in Ohio. Governor DeWine acknowledged that the Ban is blatantly unconstitutional and has stated that the Ban is an opportunity to advocate for “reversal of existing legal precedents.”3
4.7. Unless this Court grants a temporary restraining order or preliminary injunction, and later a permanent injunction, Plaintiffs will be forced to turn away patients seeking abortion care. This is a direct violation of Plaintiffs’ patients’ fundamental constitutional right to decide whether to have an abortion prior to viability, and causes those patients irreparable harm.
JURISDICTION AND VENUE 5.8. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. 6.9. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court. 7.10. Venue is appropriate under 28 U.S.C § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occur in this judicial district.
PLAINTIFFS
3 Ohio Gov. Mike DeWine Signs Ban on Abortion After 1st Heartbeat, Associated Press (Apr. 12, 2019), https://www.apnews.com/0b1deb8c1f5d41d8ab4c9e32446a55ce. Similarly, S.B. 23’s sponsor in the Senate acknowledged that, if upheld, S.B. 23 would create “a new standard” for determining an abortion restriction’s constitutionality. Talia Kaplan, Ohio “Heartbeat” Abortion Ban Passes Senate as Governor Vows to Sign It, Fox News (Mar. 14, 2019), https://www.foxnews.com/faith-values/ohio-heartbeat-abortion-ban-closer-to-becoming-law.
5

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8.11. Plaintiff Preterm-Cleveland (“Preterm”), a nonprofit corporation organized under the laws of the State of Ohio, has operated a reproductive health care clinic in Cleveland, Ohio since 1974. Preterm provides a wide range of reproductive and sexual health care services. The abortion providers at Preterm are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. Preterm faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. Preterm sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
9.12. Plaintiff Planned Parenthood Southwest Ohio Region (“PPSWO”) is a nonprofit corporation organized under the laws of the State of Ohio. PPSWO and its predecessor organizations have provided a broad range of high-quality reproductive health care to patients in southwest Ohio since 1929. PPSWO’s surgery center, located in Cincinnati, provides abortion services. The abortion providers at PPSWO are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. PPSWO faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. PPSWO sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
10.13. Plaintiff Sharon Liner, M.D., is a physician licensed to practice medicine in Ohio with fifteen years of experience in women’s healthcare. Dr. Liner is PPSWO’s Medical Director, and in that role she supervises physicians providing abortions, develops PPSWO’s policies and procedures, and provides health care services including abortion. Dr. Liner has been providing abortions since 2002. Dr. Liner faces criminal penalties if she violates the Director’s Order and potential loss of her medical license. She sues on her own behalf and on behalf of her patients.
6

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11.14. Plaintiff Planned Parenthood of Greater Ohio (“PPGOH”) is a nonprofit corporation organized under the laws of the State of Ohio. PPGOH was formed in 2012 through a merger of several local and regional Planned Parenthood affiliates that had served patients in Ohio for decades. PPGOH serves patients in northern, eastern, and central Ohio. Four PPGOH health centers, located in East Columbus, Bedford Heights, Mansfield, and Youngstown, provide abortion services. The Mansfield and Youngstown health centers provide only medication abortion services. The abortion providers at PPGOH are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. PPGOH faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. PPGOH sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
12.15. Plaintiff Women’s Med Group Professional Corporation (“WMGPC”) owns and operates Women’s Med Center of Dayton (“WMCD”) in Kettering, Ohio. WMGPC and its predecessors have been providing abortions in the Dayton area since 1975. The abortion providers at WMCD are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. WMGPC faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. WMGPC sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
16. Plaintiff Capital Care Network of Toledo (“CCNT”), a corporation organized under the laws of the State of Ohio, has operated a health care clinic in Toledo, Ohio since 2007. The abortion providers at CCNT are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. CCNT sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
7

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13.17. Plaintiff Northeast Ohio Women’s Center (“NEOWC”) is a corporation organized under the laws of the State of Ohio, and operates health care clinics in Cuyahoga Falls and Shaker Heights. NEOWC faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. NEOWC sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
14.18. Plaintiffs provide medication abortion, surgical abortion, or both medication and surgical abortion at and after six weeks from the first day of the patient’s last menstrual period (“LMP”). In accordance with Ohio law, no Plaintiffs provide abortion care at or after twenty weeks post-fertilization (twenty-two weeks LMP). Ohio Rev. Code § 2919.201.
DEFENDANTS 15.19. Defendant David Yost is the Attorney General of the State of Ohio. He is responsible for the enforcement of all laws, including the Ban. Under the Ban, he is also charged with commencing and prosecuting civil forfeiture when directed to do so by the State Medical Board. S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(B). He also has sought to enforce the Director’s Order by sending letters to some of the Plaintiffs telling them “to immediately stop performing non-essential and elective surgical abortions” or ODH “will take all appropriate measures.” Furthermore, he may file an enforcement action to close the facility, refer Plaintiffs and their physicians to local prosecutors for criminal prosecution, and refer to the Medical Board for discipline of Plaintiff Dr. Liner or Plaintiffs’ physicians. He is sued in his official capacity. 16.20. Defendant Amy Acton, M.D., M.P.H., is the Director of the Ohio Department of Health (“ODH”), which is responsible for promulgating rules to assist in compliance with the Ban, including rules governing the process for determining whether a fetal heartbeat exists and rules dictating reporting requirements. She is charged with administering ODH. She signed the
8

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Director’s Order and has the authority to enforce it. On March 26, 2019, she publicly announced that ODH was investigating three Plaintiff clinics and sent ODH inspectors to those Plaintiff clinics. As a result of her inspections, she can refer any violations to Defendant Yost for enforcement, including an action to close the facility, and she can revoke Plaintiff’s ASF licenses. She is sued in her official capacity.
17.21. Defendant Kim G. Rothermel, M.D., is the Secretary of the State Medical Board of Ohio, which is charged with enforcing the physician licensing and civil penalties contained in the Ban. The Board also has authority to act against a physician’s license based on a commission of an unlawful act. She is sued in her official capacity.
18.22. Defendant Bruce R. Saferin, D.P.M., is the Supervising Member of the State Medical Board of Ohio, which is charged with enforcing the physician licensing and civil penalties contained in the Ban. The Board also has authority to act against a physician’s license based on a commission of an unlawful act. He is sued in his official capacity.
19.23. Defendant Michael C. O’Malley is the Cuyahoga County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Cuyahoga County, where Preterm’s clinic, PPGOH’s Bedford Heights health center, and NEOWC’s Shaker Heights clinic are located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
20.24. Defendant Joseph T. Deters is the Hamilton County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Hamilton County, where PPSWO’s Cincinnati surgery center is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
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21.25. Defendant Ronald O’Brien is the Franklin County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Franklin County, where PPGOH’s East Columbus health center is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
22.26. Defendant Gary Bishop is the Richland County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Richland County, where PPGOH’s Mansfield health center is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
23.27. Defendant Paul G. Gains is the Mahoning County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Mahoning County, where PPGOH’s Youngstown health center is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
24.28. Defendant Mathias H. Heck, Jr. is the Montgomery County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Montgomery County, where WMGPC’s WMCD facility is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
29. Defendant Julia R. Bates is the Lucas County Prosecutor. She is responsible for the enforcement of all of the criminal laws in Lucas County, where CCNT’s health center is located, including the criminal provisions contained in the Ban. She is sued in her official capacity.
25.30. Defendant Sherri Bevan Walsh is the Summit County Prosecutor. She is responsible for the enforcement of all of the criminal laws in Summit County, where NEOWC’s
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Cuyahoga Falls health center is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. She is sued in her official capacity.
LEGAL FRAMEWORK The Ban
26.31. If a pregnancy is in the uterus, Ohio law requires the provider who intends to perform an abortion to determine whether there is cardiac activity.4 If there is cardiac activity, the Ban makes it a crime to “caus[e] or abet[] the termination of” the pregnancy. S.B. 23 § 1, amending Ohio Rev. Code §§ 2919.192(A), 2919.192(B), 2919.195(A).
27.32. The Ban has only two very limited exceptions. The Ban permits abortion after cardiac activity is detected only if the abortion is necessary (1) to prevent the patient’s death, or (2) to prevent a “serious risk of the substantial and irreversible impairment of a major bodily function.” S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(B). “‘Serious risk of the substantial and irreversible impairment of a major bodily function’ means any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function.” Ohio Rev. Code § 2919.16(K). A “medically diagnosed condition that constitutes a ‘serious risk of the substantial and irreversible impairment of a major bodily function’ includes pre-eclampsia, inevitable abortion, and premature rupture of the membranes,” but “does not include a condition related to the woman’s mental health.” Id.
33. A violation of the Ban is a fifth-degree felony, punishable by up to one year in
4 The Ban instructs the Ohio Department of Health to adopt rules “specifying the appropriate methods of performing an examination for the purpose of determining the presence of a fetal heartbeat” within 120 days of the Ban’s effective date. S.B. 23 § 1, amending Ohio Rev. Code § 2919.192.
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prison and a fine of $2,500. S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(A); Ohio Rev. Code §§ 2929.14(A)(5), 2929.18(A)(3)(e). In addition to criminal penalties, the state medical board may assess a forfeiture of up to $20,000 for each violation of the Ban, S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(A), and limit, revoke, or suspend a physician’s medical license based on a violation of the Ban, see Ohio Rev. Code § 4371.22(B)(10). The Plaintiff facilities could face criminal penalties and revocation of their ambulatory surgical center license for a violation of the Ban. A patient may also bring a civil action against a provider who violates the Ban and recover damages in the amount of $10,000 or more. S.B. 23 § 1, amending Ohio Rev. Code § 2919.199(B)(1).
The Director’s Order 34. In March 2020, the United States and Ohio both declared a state of emergency related to the COVID-19 pandemic. See Director’s Order at 3; Ohio Exec. Order 2020-01D;5 Proclamation No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020). The virus has reached every State in the country, including approximately 1653 confirmed cases in Ohio and 29 deaths as of the time of filing.6 Federal and state officials and medical professionals expect a surge of infections—which may last for a year or eighteen months7—testing the limits of the

5 Available at https://tinyurl.com/ud789de.

6 CDC, Cases in U.S. (last updated Mar. 29, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/cases-updates/cases-in-us.html;

ODH,

COVID-19,

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/ (last visited Mar. 29, 2020).

7 Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. Times (Mar. 8, 2020), https://www.nytimes.com/2020/03/08/health/fauci-coronavirus.html.

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health care system,8 which is already facing a shortage of personal protective equipment (“PPE”), particularly N95 masks.9
35. In light of this new reality, on March 17, 2020, Dr. Amy Acton, Director of ODH, issued an order barring all “non-essential surgeries and procedures” beginning at 5 p.m. on March 18, 2020. Director’s Order at 4.10 The order states that its purpose is to “preserv[e] personal protective equipment (PPE) and critical hospital capacity and resources within Ohio.” Id.
36. Although the order does not define PPE, Plaintiffs understand that term to refer, for example, to surgical masks, sterile gloves, disposable protective eyewear, disposable gowns, and shoe covers.
37. The Director’s Order defines a “non-essential surgery” as “a procedure that can be delayed without undue risk to the current or future health of a patient,” and lists “[e]xamples of criteria to consider,” including whether there is a “threat to the patient’s life if surgery or [the] procedure is not performed,” a “[t]hreat of permanent dysfunction of an extremity or organ system,” a “risk of metastasis or progression of staging,” or a “risk of rapidly worsening to severe symptoms (time sensitive).” Director’s Order at 4.
38. The Director’s Order remains in effect until the state of emergency declared by
8 Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States, CDC (last updated Feb. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf.html 9 Andrew Jacobs, Matt Richtel & Mike Baker, ‘At War With No Ammo’: Doctors Say Shortage of Protective Gear Is Dire, N.Y. Times (Mar. 19, 2020), https://www.nytimes.com/2020/03/19/health/coronavirus-masks-shortage.html. 10 The Director’s Order cites as its authority section 3701.13, which allows ODH to “make special or standing orders or rules for preventing the spread of contagious or infectious diseases” Ohio. Rev. Code § 3701.13.
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the Ohio governor no longer exists or ODH rescinds or modifies the order. Id. ODH has indicated that it applies to hospitals and ambulatory surgical facilities (“ASF”) in Ohio. See Ohio Rev. Code § 3702.30 (defining ASFs). The Order provides that “[e]ach hospital and outpatient surgery or procedure provider shall establish an internal governance structure to ensure the principles outlined above are followed.” Director’s Order at 4. The Director may petition for injunctive or other relief. Ohio Rev. Code § 3701.57. In addition, violation of the Director’s Order is a second-degree misdemeanor. Ohio Rev. Code § 3701.352.
FACTUAL ALLEGATIONS Six Week Ban
28.39. In a normally developing embryo, cells that form the basis for development of the heart later in gestation produce activity that can be detected with ultrasound.
29.40. Consistent with medical practice, as well as existing law, see Ohio Rev. Code § 2919.191(A), Plaintiffs perform an ultrasound to date the pregnancy and to determine whether there is detectable fetal or embryonic cardiac activity.11 Ultrasounds can be performed either by placing a transducer on the patient’s abdomen or by inserting a probe into the patient’s vagina. Many providers, including providers at Plaintiff clinics, use vaginal ultrasound to confirm and date early pregnancy.
30.41. Using vaginal ultrasound, cardiac activity is generally detectible beginning at approximately six weeks, zero days LMP.12
11 The embryonic stage of pregnancy lasts from fertilization until approximately eight to ten weeks LMP. Beginning at about eleven weeks LMP, the embryo becomes a fetus. 12 See Thomas Gellhaus, M.D., ACOG Opposes Fetal Heartbeat Legislation Restricting Women’s Legal Right to Abortion, American Congress of Obstetricians & Gynecologists (Jan.
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31.42. Ohio law prohibits abortion after viability, except when that abortion is necessary to preserve the pregnant woman’s life or health.13 Ohio Rev. Code § 2919.17.
32.43. Six weeks LMP is a pre-viability point in pregnancy. At that point, no embryo is capable of surviving outside of the womb. Thus, the Ban prohibits abortion well before viability.
A. A Ban on Abortion at and After Six Weeks LMP Will Practically Eliminate Abortion Care in Ohio 35. Pregnancy is commonly measured from the first day of a woman’s last menstrual period. A full-term pregnancy is approximately forty weeks LMP. 36. The menstrual cycle is usually approximately four weeks long, but will vary based on the individual. Thus, even a woman with highly regular periods would be four weeks pregnant as measured from her last menstrual period when her missed period occurs. A ban on abortion at and after six weeks would only allow two weeks, at most, for a woman to learn that she is pregnant, decide whether to have an abortion, and to seek and obtain abortion care. 37. Prior to six weeks LMP, many women have none of the physical indicators of pregnancy. Many women do not menstruate at regular intervals, or they go long stretches without experiencing a menstrual period. Menstrual patterns commonly vary with age. Indeed, it is extremely common for women to have irregular periods at some point in their lives. Additionally, women may experience bleeding in early pregnancy that can be mistaken for a period.
18, 2017), https://www.acog.org/About-ACOG/News-Room/Statements/2017/ACOG-OpposesFetal-Heartbeat-Legislation-Restricting-Womens-Legal-Right-to-Abortion. 13 Another provision of Ohio law prohibits abortion after twenty weeks post-fertilization, or twenty-two weeks LMP. Ohio Rev. Code § 2919.201.
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38. Further, women who have certain common medical conditions, such as obesity, those who are breastfeeding, or those who use hormonal contraceptives may experience irregular periods and therefore may not recognize a missed period before six weeks LMP.
39. For all of these reasons, a woman may be six weeks pregnant but not realize she has missed a period, much less consider a missed period unusual or a signal that she may be pregnant.
40. On top of these biological realities, many patients face logistical obstacles that will make it difficult to obtain an abortion before six weeks in pregnancy.
41. For example, Ohio law mandates that a patient make two in-person trips to the clinic before obtaining an abortion in order to consent, determine whether there is cardiac activity, and receive state-mandated information. Ohio Rev. Code § 2317.56. These visits must be at least twenty-four hours apart. Id.
42. State law prohibits Medicaid and other public insurance programs, as well as private insurance plans listed on Ohio’s federally run insurance exchange, from covering abortion. Ohio Rev. Code §§ 9.04, 3901.87; Ohio Admin. Code § 5160-17-01. Thus, patients often need time to gather the resources to pay for the abortion and related costs, as well as to arrange transportation to the clinic, time off from work, and possibly arrange for childcare during appointments.
43. In addition to completing this two-day process, patients under eighteen must obtain written consent from a parent or a court order from a judge before receiving abortion care. Ohio Rev. Code § 2919.121.
44. For all of the reasons stated above, approximately 90% of abortions in Ohio occur after six weeks.
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45. Thus, the Ban will prohibit almost all abortion care in Ohio. Director’s Order
Plaintiffs’ Practices to Protect Patients During the COVID-19 Outbreak and Compliance With Director’s Order 46. Plaintiffs are committed to responding to the current public health crisis, including by preserving much-needed medical resources that are in short supply during the pandemic such as PPE. 47. Neither surgical abortion nor medication abortion requires extensive PPE. A typical surgical abortion requires minimal use of some or all of the following: gloves, a surgical mask, protective eyewear, disposable and/or washable gowns, and hair and shoe covers. Medication abortion uses less PPE than surgical abortion as the process of handing patients a pill requires no PPE at all. Since the Order, when a patient is eligible for both surgical and medication abortion, patients are provided a medication abortion, unless surgical abortion is the more appropriate method. 48. Plaintiffs do not use N95 masks, which, upon information and belief, are the PPE that are in shortest supply during the COVID-19 pandemic, for abortion. Furthermore, only a small number of health care staff are physically present for abortion procedures or their preparation/recovery and therefore in need of PPE. 49. Plaintiffs have also taken other precautions to maximize the safety of their patients and staff and to conserve PPE consistent with CDC guidance. For example, they are screening patients for COVID-19 symptoms before each visit. They have reduced patient volume and/or increased appointment spacing between patients. Plaintiffs have also made changes to the flow of patient care in order to comply with social-distancing recommendations by, for exampling, reconfiguring waiting rooms or having patients wait in their cars. Prior to the
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COVID-19 outbreak, Plaintiffs welcomed support persons to accompany abortion patients, but Plaintiffs have now decided not to allow such companions (except parents accompanying minors) to enter their health centers in order to reduce the number of overall people that can be near one another.
50. Patients who are prevented from obtaining abortion care as a result of the Order must still seek medical care to maintain their health and well-being. Thus, pregnant patients will require care from providers using PPE whether the pregnancy is terminated or not. In the event that this crisis continues for months—as it is expected to do—people will be forced to give birth against their will, necessitating the use of more PPE, and the use of hospital beds.
51. Plaintiffs promptly adopted policies to implement the Director’s Order.14 Each policy forbids the performance of “non-essential surgeries and procedures that utilize PPE” until the end of Ohio’s declared emergency or the Director’s Order is modified or rescinded. Plaintiffs’ policies observed that the timeframe for a patient to obtain an abortion is limited given that abortion is banned in Ohio at 22 weeks LMP.
52. Plaintiffs’ policies direct physicians to consider the plain terms of the Director’s Order, which states that “a surgery is essential if it cannot ‘be delayed without undue risk to the current or future health of a patient’ and includes, as examples of criteria to consider, the risk to the patient of rapidly worsening to severe symptoms that make the surgery time sensitive, as well as a progression of staging.” While abortion is an extremely safe medical procedure, it cannot be delayed without increasing the risk to the health of the patient.
53. Plaintiffs’ policies also cite the position of American College of Obstetricians and
14 Plaintiff Dr. Liner did not adopt such a policy because she is an individual (and not a hospital or ASF); however, as medical director of Plaintiff PPSWO, she was responsible for adoption of its implementing policy.
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Gynecologists (“ACOG”), the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine. These trusted national medical organizations issued a joint statement on “Abortion Access During the COVID-19 Outbreak,” which provides that “[t]o the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”15
54. Plaintiffs’ policies also cited the Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” which concurred with the American College of Surgeons’ recommendation that consideration of whether delay of a surgery during the pandemic is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”16
15 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-accessduring-the-covid-19-outbreak. (Attached as Exhibit D to Liner Declaration in Support of Plaintiffs’ Motion for a TRO.) 16 Ambulatory Surgery Ctr. Ass’n, COVID-19: Guidance for ASCs on Necessary Surgeries (last updated Mar. 19, 2020), https://www.ascassociation.org/asca/resourcecenter/latestnewsresourcecenter/covid-19/covid-19guidance (quoting Am. Coll. of Surgeons, COVID-19: Recommendations for Management of Elective Surgical Procedures (Mar. 13, 2020), https://www.facs.org/about-acs/covid-
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Defendants Yost and Acton’s Enforcement of the Director’s Order 55. Defendants Yost and Acton’s enforcement of the Order began when three Plaintiffs—WMCD, PPSWO, and Preterm—received letters via email from the Ohio Attorney General on March 20 and March 21 ordering those Plaintiffs “to immediately stop performing non-essential and elective surgical abortions” or ODH “will take all appropriate measures.” 56. These Plaintiffs responded to the Attorney General by confirming their compliance with the Director’s Order, amending their policies to clarify that physicians must make a case-by-case determination of whether the abortion is essential, and offering to share their implementing policies. 57. These three Plaintiffs received no further communication from the Attorney General, but were inspected by ODH all day on March 26 and March 27 by two inspectors per facility. After two days of inspections, the inspectors left without telling the facilities whether or not they had found violation of the Director’s Order or any other regulation—a distinct break with established ODH practice and procedure—and instead said their superiors would make that determination at an unspecified later date. 58. On March 26, Director Acton said at a press conference that ODH had “listened to the AG” and began to investigate “violations [of the Order] across the state,” including at abortion clinics.17 At that same press conference, Governor DeWine made clear that he interprets the Director’s Order to allow surgical abortion when the abortion “is done to save someone’s life[.]” That same day, the Attorney General again threatened “quick enforcement 19/information-for-surgeons/elective-surgery). (Attached as Exhibit E to Liner Declaration in Support of Plaintiffs’ Motion for a TRO.) 17 Gov. Mike DeWine Corona Virus Update March 26, 2020, available at https://www.ideastream.org/gov-mike-dewine-coronavirus-update-march-26-2020.
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action” against clinics that continue to provide surgical abortion care.18 59. Enforcement of the Director’s Order to ban virtually all surgical abortion would
ban the only abortion method available for all patients who are over 10 weeks pregnant and the only method available to some patients at any point in pregnancy.
60. There are two main methods of abortion: medication abortion and surgical abortion. Medication abortion involves a combination of two pills: mifepristone and misoprostol. The patient takes the first medication in the health center and then, typically twenty-four to forty-eight hours later, takes the second medication at a location of their choosing, most often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage. Surgical abortion is not what is commonly understood to be “surgery”; it involves no incision. It involves the use of instruments and/or gentle suction to safely empty the contents of the uterus.
61. For some patients, medication abortion is contraindicated or there are other factors that would counsel in favor of a surgical abortion, such as patients with an allergy to the medications or other medical conditions that makes surgical abortion relatively more appropriate.
62. All plaintiffs provide medication abortion up to ten weeks LMP (through seventy days). Plaintiffs provide surgical abortion up to maximum gestations ranging from fifteen weeks and six days up to twenty-one weeks and six days LMP.19
18 Attorney General Yost press release March 26, 2020 states that Attorney General Yost is “the prosecutor” and ODH is the “police officer” and he vowed to “take quick enforcement action once an investigation is completed by [ODH] . . . .” Yost stated that he “stands ready to play our role and pursue legal action on behalf of [ODH].” (Attached as Exhibit C.) 19 Ohio Revised Code section 2919.123 restricts the first drug to the federally approved label, which is ten weeks. See FDA, Mifeprex (mifepristone) Information (last updated Feb. 5, 2018), https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-
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63. According to the latest data from ODH in 2018, 55.7% of Ohio abortions in 2018 occurred before nine weeks gestational age, while 44.3% occurred at or after nine weeks.20 More than 56% of abortions in the state were surgical abortions.21
64. The length of the Director’s Order is tethered to the pandemic, which experts believe will last at least one year to eighteen months, if not more.22 As a result, if applied to ban surgical abortion, the Director’s Order could force patients who would otherwise obtain a surgical abortion—that is, all those who are ten or more weeks pregnant and those with earlier pregnancies for whom medication abortion is not appropriate—to “delay” care until the pandemic is over. Director’s Order at 4. At least 56% of patients seeking abortion in Ohio fall into those categories.
65. To enforce their interpretation of the Director’s Order, Defendants could take action to close the facilities, prosecute Plaintiffs and their staff, and take action on Plaintiffs’ physicians’ medical licenses.
mifepristone-information; Ohio Revised Code section 2919.201 prohibits abortions after twentytwo weeks LMP. 20 John Paulson & Donna L. Smith, ODH, Induced Abortions in Ohio 24 (2019), https://tinyurl.com/ufxuqpw. 21 Id. at 23. 22 See Grady, supra note 7; Am. Coll. of Surgeons, supra note 16; see also Mark Fisher, Ohio’s Schools May Have to Remain Closed for Rest of School Year, DeWine Says, Dayton Daily News (Mar. 15, 2020), https://www.daytondailynews.com/news/local/gov-dewine-ohio-schools-mayhave-remain-closed-for-rest-school-year/wLWoHUCq2mMWKtZPVStxFM (Gov. DeWine acknowledging schools “absolutely” may be closed for the remainder of the school year).
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B. Impact of Banning Abortion Care in Ohio 45.66. The near-total ban on abortion imposed by S.B. 23, and the ban on surgical abortions under the Director’s Order, would have a devastating impact on the lives of individuals who want to consider or seek abortion in Ohio. 46.67. Approximately one in four women in this country will have an abortion by age forty-five. A majority of those having abortions (61%) already have at least one child, while most (66%) also plan to have a child or additional children in the future.23 47.68. Legal abortion is one of the safest medical procedures in the United States and is substantially safer than continuing a pregnancy through to childbirth. The risk of death associated with childbirth is approximately fourteen times higher than that associated with abortion, and every pregnancy-related complication is more common among women giving birth than among those having abortions.24 48.69. If a woman is forced to continue a pregnancy against her will, it can pose a risk to her physical, mental, and emotional health, as well as to the stability and well-being of her family, including existing children. 49.70. A child can place economic and emotional strain on a family and may interfere with an individual’s life goals. As most patients who seek abortion already have at least one
23 See Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime Incidence of Abortion: United States, 2008-2014, Guttmacher Institute (Oct. 2017), https://www.guttmacher.org/article/2017/10/population-group-abortion-rates-and-lifetimeincidence-abortion-united-states-2008; Concern for Current and Future Children a Key Reason Women Have Abortions, Guttmacher Institute (Jan. 7, 2008), https://www.guttmacher.org/newsrelease/2008/concern-current-and-future-children-key-reason-women-have-abortions; Abortion Facts, National Abortion Federation, https://prochoice.org/education-and-advocacy/aboutabortion/abortion-facts/. 24 Elizabeth Raymond & David Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215, 215 (Feb. 2012).
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child, families must consider how an additional child will impact their ability to care for the children they already have.
50.71. Even for someone who is otherwise healthy and has an uncomplicated pregnancy, carrying that pregnancy to term and giving birth poses serious medical risk and can have longterm medical and physical consequences. For a woman with a medical condition caused or exacerbated by pregnancy or for a woman who learns that her fetus has been diagnosed with a severe or lethal anomaly, these risks are increased.
51.72. Pregnancy, childbirth, and an additional child may exacerbate an already difficult situation for those who have suffered trauma, such as sexual assault or domestic violence.
52.73. If a woman is forced to continue a pregnancy against her will, it can pose a risk to her physical, mental, and emotional health, as well as to the stability and wellbeing of her family, including existing children.
53.74. S.B. 23 and the ban under the Director’s Order will have a disproportionate impact on the lives of Black people, other people of color, and people with low incomes in Ohio.
54.75. Statistics show that in 2017, Black people made up only 12.9% of Ohio’s population but 40% of people who obtained abortions in Ohio; Indigenous (American Indian) people and other people of color (Asian/Pacific Islander, Multiracial, and Hispanic people) made up 8.8% of the population, but 11.9% of the people that obtain abortions.25
55.76. Were the Ban to go into effect, or Defendants’ enforcement of the Director’s Order to ban surgical abortions not enjoined, Black people are likely to suffer some of the
25 Induced Abortions in Ohio, Ohio Dep’t of Health (2017), https://odh.ohio.gov/wps/portal/gov/odh/know-our-programs/vital-statistics/resources/vsabortionreport2017; Quick Facts: Ohio, U.S. Census Bureau, https://www.census.gov/quickfacts/oh.
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gravest consequences. Recent statistics from the U.S. Centers for Disease Control and Prevention show that Black women are three times more likely than White women to die of causes related to pregnancy.26 In Ohio, Black infants are three times more likely than their White counterparts to die before their first birthday.27
77. A large majority of patients who obtain abortion care in Ohio are low income. 78. People who have decided to have an abortion should not be denied access to abortion, nor should their care be delayed. Although abortion is significantly safer than continuing pregnancy through childbirth, the risks associated with abortion increase as pregnancy advances. 79. The COVID-19 pandemic and its fallout do not reduce patients’ needs for abortion; if anything, they make timely access to abortion even more urgent, while raising additional obstacles for patients seeking that care. For example, even before the COVID-19 outbreak, people seeking access faced many obstacles. Low-wage workers often have no paid time off or sick leave, so even if a pregnant worker is able to get time off work for an abortion appointment, they will likely have to forgo part of a paycheck. Patients facing long travel distances typically must arrange and pay for transportation and arrange to take time off work. Many patients must also arrange and pay for childcare while they travel to their abortion appointment.
26 Emily E. Petersen et al., Vital Signs: Pregnancy-Related Deaths, United States, 2011-2015, and Strategies for Prevention, 13 States, 2013-2017, 68 Morbidity & Mortality Weekly Rep. 423 (May 10, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/mm6818e1.htm?s_cid=mm6818e1_w. 27 Ohio Infant Deaths in 2017 Second-Lowest on Record While Racial Disparities in Birth Outcomes Continued, Ohio Dep’t of Health (Dec. 6, 2018), https://odh.ohio.gov/wps/portal/gov/odh/media-center/odh-news-releases/2017-ohio-infantmortality-report.
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80. These obstacles are compounded by the various abortion restrictions already in
effect in Ohio. For example, all patients must make two in-person trips at least twenty-four
hours apart to a health center in order to obtain an abortion. Ohio Rev. Code § 2317.56. Minor
patients, unless emancipated, must also obtain written consent from a parent or a judicial order
before they can receive care. Ohio Rev. Code § 2919.121.
81. Now, during the COVID-19 pandemic, patients must navigate these barriers
against the backdrop of job insecurity, minimal public transit availability, and limited childcare assistance due to mandatory social distancing and shelter in place orders. 28 Indeed, jobless claims are soaring due to the virus.29 All of these factors can result in delay in obtaining care
which, in turn, results in higher financial and emotional costs to the patient. Those patients who
are able to obtain care out of state will face increased risk of exposure to the virus because of this
travel and providers treating those patients will still be using PPE in any case.
28 ODH, Governor DeWine Announces School Closures (Mar. 12, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-canuse/governor-dewine-announces-school-closures; ODH, Governor DeWine Orders Ohio Bars & Restaurants to Close (Mar. 15, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid19/home/news-releases-news-you-can-use/governor-dewine-orders-ohio-bars-restaurants-toclose; ODH, Governor DeWine Announces Additional Temporary Business Closures (Mar. 18, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-canuse/governor-dewine-announces-additional-temporary-business-closures; Ohio Exec. Order 2020-04D; see also White House, The President’s Coronavirus Guidelines for America (Mar. 16, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirusguidance_8.5x11_315PM.pdf; Rebecca Shabad, Fauci Predicts Americans Will Likely Need to Stay Home for at Least Several More Weeks, NBC News (Mar. 20, 2020) https://www.nbcnews.com/politics/donald-trump/fauci-predicts-americans-will-likely-need-stayhome-least-several-n1164701. 29 Scott Noll, As Ohio Unemployment Soars, Some People Are Missing Out on Benefits, News 5 Cleveland (Mar. 19, 2020), https://www.news5cleveland.com/news/local-news/as-ohiounemployment-soars-some-people-are-missing-out-on-benefits.
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56.82. Furthermore, while much is unknown about COVID-19, including whether it can complicate pregnancy, some pregnant people who are delayed in accessing abortion may be exposed to additional health risks from the disease. ACOG has warned that “pregnant women are known to be at greater risk of severe morbidity and mortality from other respiratory infections such as influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population for COVID-19.”30
57.83. Absent an injunction, Plaintiffs will have no choice but to turn away patients in need of abortion care. Ohioans’ well-being and dignity would suffer irreparably. The Ban and applying the Director’s Order to ban surgical abortion violate the constitutional rights of Plaintiffs’ patients and irreparably harms them.
CLAIMS FOR RELIEF COUNT I
(Substantive Due Process – Six Week Ban) 58.84. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 83. 59.85. By prohibiting abortion prior to viability, the Ban violates Ohioans’ right to privacy guaranteed by the Fourteenth Amendment to the U.S. Constitution. 86. If the Ban is allowed to take effect, Plaintiffs’ patients will be subject to irreparable harm for which no adequate remedy at law exists by preventing Plaintiffs’ patients from obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional,
30 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (March 13, 2020), https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/novelcoronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnant-women-faq.html.
27

Case: 1:19-cv-00360-MRB Doc #: 39-2 Filed: 03/30/20 Page: 29 of 33 PAGEID #: 497
medical, emotional, and other harm. COUNT II
(Substantive Due Process – Director’s Order) 87. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 86. 88. Applying the Director’s Order in a way that would ban surgical abortion violates Ohioans’ right to privacy guaranteed by the Fourteenth Amendment to the U.S. Constitution. 89. If Defendants’ efforts to enforce the Director’s Order to ban surgical abortion are not enjoined, Plaintiffs’ patients will be subject to irreparable harm for which no adequate remedy at law exists by preventing Plaintiffs’ patients from obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional, medical, emotional, and other harm.
COUNT III (Due Process – Vagueness – Director’s Order) 90. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 89. 91. Defendants have created ambiguity as to the circumstances in which Plaintiffs can provide surgical abortion as an “essential” surgery consistent with the Director’s Order, making it impossible for Plaintiffs to know what actions are forbidden or required. Plaintiffs therefore do not have adequate guidance as to how to comply with the Director’s Order. This lack of clarity invites arbitrary and discriminatory enforcement of the Director’s Order. 92. Plaintiffs are unable to determine how to comply with the Director’s Order, and yet face criminal penalties and the loss of facility and medical licenses. Therefore, Plaintiffs’ rights secured to them by the due process guarantees of the Fourteenth Amendment to the U.S. Constitution are violated.
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COUNT IV (Equal Protection – Director’s Order) 93. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 92. 94. By selectively burdening patients’ fundamental right to abortion without justification and singling abortion providers and their patients out for differential treatment from providers of other medical services and their patients, Defendants’ attempts to enforce the Director’s Order to ban surgical abortions violate Ohioans’ right to equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution. 60.95. Unless enjoined, Defendants will subject Plaintiffs and their patients to irreparable harm for which no adequate remedy at law exists by preventing patients from or significantly delaying them in obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional, medical, emotional, and other harm REQUEST FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A. To immediately issue a temporary restraining order and/or preliminary injunction, and later a permanent injunction, restraining Defendants, their employees, agents, and successors in office from enforcing the Ban. B. To immediately issue a temporary restraining order and/or preliminary injunction, and later a permanent injunction, restraining Defendants, their employees, agents, and successors in office from enforcing the Director’s Order to ban virtually all surgical abortions after 10 weeks LMP or under 10 weeks for whom surgical abortion is the more appropriate method. C. To enter a judgment declaring that the Ban and the application of the Director’s Order to ban surgical abortions violates the Fourteenth Amendment to the U.S. Constitution.
29

Case: 1:19-cv-00360-MRB Doc #: 39-2 Filed: 03/30/20 Page: 31 of 33 PAGEID #: 499 C. To award Plaintiffs their attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. D. To grant such other and further relief as the Court deems just and proper.
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Dated: March 30, 2020
Elizabeth Watson* Rachel Reeves* Brigitte Amiri* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2633 (212) 549-2650 (fax) ewatson@aclu.org rreeves@aclu.org bamiri@aclu.org Counsel for Plaintiff Preterm-Cleveland and Northeast Ohio Women’s Center
Carrie Y. Flaxman Richard Muniz* Planned Parenthood Federation of America 1110 Vermont Ave NW, Suite 300 Washington, DC 20005 (202) 973-4800 (202) 296-3480 (fax) carrie.flaxman@ppfa.org*** richard.muniz@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, and Sharon Liner, M.D.
Hana Bajramovic*** Planned Parenthood Federation of America 123 William Street, Floor 9 New York, NY 10038 (212) 541-7800 (212) 247-6811 (fax) hana.bajramovic@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood Greater of Ohio, and Sharon Liner, M.D.

Respectfully Submitted,
/s/ B. Jessie Hill** B. Jessie Hill #0074770, Trial Attorney Freda J. Levenson #0045916 American Civil Liberties Union of Ohio, Foundation, Inc. 4506 Chester Ave. Cleveland, OH 44103 (216) 368-0553 – Jessie Hill (614) 586-1972 x 125 – Freda Levenson (614) 586-1974 (fax) bjh11@cwru.edu flevenson@acluohio.org Counsel for Plaintiff Preterm-Cleveland and Northeast Ohio Women’s Center
Jennifer L. Branch # 0038893 Alphonse A. Gerhardstein # 0032053 Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202 (513) 621-9100 (513) 345-5543 (fax) agerhardstein@gbfirm.com jbranch@gbfirm.com Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Sharon Liner, M.D., Women’s Med Group Professional Corporation and Capital Care Network of Toledo
*Applications for admission pro hac vice granted
** Cooperating Counsel for the ACLU of Ohio Foundation
*** Application for admission pro hac vice forthcoming

31

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Case: 1:19-cv-00360-MRB Doc #: 39-3 Filed: 03/30/20 Page: 1 of 2 PAGEID #: 502

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

PRETERM-CLEVELAND, INC., et al.,

:

:

Plaintiffs,

:

Case No. 1:19-cv-00360

v.

:

:

DAVID YOST, et al.,

:

Judge Barrett

:

Defendants.

:

PROPOSED ORDER GRANTING PLAINTIFFS’ EXPEDITED MOTION TO FILE SUPPLEMENTAL COMPLAINT
Upon consideration of the Plaintiffs’ expedited motion to file a supplemental complaint, and the attachments thereto, this Court finds justice will be served by granting the filing of Plaintiffs’ supplemental complaint. Under Federal Rule of Civil Procedure 15(d), the Court “may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” The Sixth Circuit has a “liberal policy” in favor of supplemental pleadings. Mattox v. Edelman, 851 F.3d 583, 592 (6th Cir. 2017). Supplementation serves judicial economy, given the Court’s familiarity with the relevant facts and the overlapping subject matter and claims. Moreover, supplementation would not prejudice Defendants because the parties have not engaged in any discovery, and there has been no significant activity in the case since briefing completed on Plaintiffs’ motion for judgment on the pleadings. The Court finds good cause to consider the Plaintiffs’ motion on an expedited basis.
Therefore, the Court grants Plaintiffs’ expedited motion to file a supplemental complaint and deems Plaintiffs’ Supplemental Complaint for Declaratory and Injunctive Relief filed.
IT IS SO ORDERED.

Case: 1:19-cv-00360-MRB Doc #: 39-3 Filed: 03/30/20 Page: 2 of 2 PAGEID #: 503

Date: ______________

______________________________ HON. MICHAEL R. BARRETT DISTRICT COURT JUDGE

2

Case: 1:19-cv-00360-MRB Doc #: 39-4 Filed: 03/30/20 Page: 1 of 1 PAGEID #: 504

THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WEEASSTTEERRNNDDIIVVIISSIIOON

_P_r_e_te_r_m_-_C_l_e_v_el_a_n_d_, _e_t _a_l.______________ v.
_D_a_v_i_d_Y__o_st_,_e_t_a_l.____________________

: : Case No. _1_:1_9_-_c_v_-_3_6_0_______ : Judge: _M_ic_h_a_el_R_._B_a_rr_et_t _______ : Corporate Disclosure Statement : : :

Pursuant to the Corporate Disclosure Statement provisions in Local Civil Rule 7.1.1: Any nongovernmental corporate party to a proceeding must file a Corporate Affiliations/Financial Interest statement identifying all of its parent, subsidiary and other affiliate corporations and listing any publicly held company that “controls, is controlled by, or is under common control with a publicly controlled corporation.” A party must file the statement upon filing a complaint, answer, motion, response or other pleadings in this Court, whichever occurs first. The obligation to disclose any changes will be continuing throughout the pendency of this case.

In Compliance with those provisions, this Corporate Disclosure Statement is filed on behalf of:

_N_o_r_t_h_ea_s_t_O__h_io__W_o_m__e_n_'s__C_e_n_te_r_____________________________________________.

1. Is said party a parent, subsidiary or other affiliate of a publicly owned corporations?

___ YES

___ NO

If the answer is YES, list below the identity of the parent, subsidiary or other affiliate corporation and the relationship between it and the named party: ________________________________________________________________________ ________________________________________________________________________

2. Is there a publicly owned corporation, not a party to the case, that has a financial interest in the outcome?

___ YES

___ NO

If the answer is YES, list the identity of such corporation and the nature of the financial interest. ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

_/s_/_B__ea_t_r_ic_e_J_e_s_s_ie_H__i_ll____________ Signature of Counsel

_3_/2_9_/_2_0_2_0________________ Date

“Certificate of Service”
COUNSEL ARE REMINDED OF THEIR CONTINUING OBLIGATION TO UPDATE AND SUPPLEMENT THIS STATEMENT

 
 Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 1 of 27 PAGEID #: 740

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO

PRETERM-CLEVELAND, INC., et al., Plaintiffs,
v. DAVID YOST, et al.,
Defendants.

:

:

:

Case No. 1:19-cv-00360

:

:

:

Judge Barrett

:

:

MOTION FOR AND BRIEF IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION
Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs Preterm-Cleveland (“Preterm”), Planned Parenthood Southwest Ohio Region (“PPSWO”), Sharon Liner, M.D., Planned Parenthood of Greater Ohio (“PPGOH”), Women’s Med Group Professional Corporation (“WMGPC”), and Northeast Ohio Women’s Center (“NEOWC”) (“Plaintiffs”) move for a temporary restraining order, followed by a preliminary injunction, to enjoin Defendants from enforcing the Ohio Department of Health (“ODH”) Director’s Order for the Management of Nonessential Surgeries and Procedures Throughout Ohio (“Director’s Order”) (attached as Ex. B to Proposed Suppl. Complaint (“Suppl. Compl.”)) in a way that would ban surgical abortion.1
As the American College of Obstetricians and Gynecologists (“ACOG”) has recognized, abortion care is essential because it cannot be delayed without risking the health and safety of the patient.2 Accordingly, Plaintiffs’ provision of this care is entirely consistent with the Director’s

1 ODH, RE: Director’s Order for the Management of Non-essential Surgeries and Procedures throughout Ohio (Mar. 17, 2020), https://tinyurl.com/woxkyhw.
2 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak.

Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 2 of 27 PAGEID #: 741
Order, under which a “non-essential” surgery or procedure is a “procedure that can be delayed without undue risk to the current or future health of a patient.” Director’s Order at 4. Consistent with the plain language of this Order, Plaintiffs—like all healthcare providers—are doing their part to reduce the spread of COVID-19 and preserve personal protective equipment (“PPE”), such as gloves and masks, by stopping all non-essential procedures and reducing the use of PPE as much as possible during surgical abortions and other essential medical procedures that they continue to provide.
Despite Plaintiffs’ compliance with the Order and in response to unidentified complainants,3 on March 20 and 21, 2020, Attorney General Dave Yost sent letters to PPSWO, Preterm, and Women’s Med Center Dayton (“WMCD”) (a licensed ambulatory surgical facility (“ASF”) owned by WMGPC) ordering the clinics “to immediately stop performing non-essential and elective surgical abortions” or ODH “will take all appropriate measures.” Declaration of Sharon Liner, M.D. (“Liner Decl.”), Ex. F; Declaration of Chrisse France (“France Decl.”), Ex. B; Declaration of W.M. Haskell, M.D. (“Haskell Decl.”), Ex. B. At a press conference on March 26, ODH Director Dr. Amy Acton said that ODH had “listened to the AG” and began to investigate “violations [of the Order] across the state,” including at abortion clinics.4 At that same press conference, Governor Mike DeWine identified only life-saving abortions as falling within the
3 Though ODH would not tell Plaintiffs the source of the complaints, evidence suggest they came from anti-abortion activists. Liner Decl. ¶ 17; France Decl. ¶ 17; Haskell Decl. ¶ 20.
4 Gov. Mike DeWine Corona Virus Update March 26, 2020, available at https://www.ideastream.org/gov-mike-dewine-coronavirus-update-march-26-2020.
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Order’s parameters.5 That same day, the Attorney General again threatened “quick enforcement action” against clinics that continue to provide surgical abortion care.6
On March 26 and 27, ODH sent inspectors to Preterm, WMCD, and PPSWO to investigate those clinics’ compliance with the Director’s Order. Liner Decl. ¶ 17; France Decl. ¶ 14; Haskell Decl. ¶¶ 20, 23. After two days of inspections, the inspectors left without telling the facilities whether they had found violations of the Director’s Order or any other regulation—a distinct break with established ODH practice and procedure—and instead said their superiors would make that determination at an unspecified later date. Liner Decl. ¶ 20; France Decl. ¶ 20; Haskell Decl. ¶ 23.
Plaintiffs need urgent relief from this Court. Without any clear guidance from the ODH and in light of the statements of the Director, Governor, and Attorney General and the actions of ODH, Plaintiffs and their physicians credibly fear being immediately shut down and prosecuted if they continue to provide surgical abortions.7 Liner Decl. ¶ 41; France Decl. ¶ 22; Haskell Decl. ¶ 24; Declaration of Adarsh Krishen (“Krishen Decl.”) Decl. ¶ 20; Declaration of David Burkons, M.D. (“Burkons Decl.”) ¶ 20. In the absence of an injunction, the enforcement of the Director’s Order to ban surgical abortion—the only abortion method available for all patients who are over 10 weeks pregnant and the only method available to some patients at any point in pregnancy, Plaintiffs’ patients would be denied their right to access safe and legal previability abortion, in
5 Id. The Governor did not say if he believed surgical abortion would be allowed under other circumstance such as if continued pregnancy posed serious but not life-threatening risks to a patient’s health.
6 Attorney General Yost press release March 26, 2020, Liner Decl. Ex. G (General Yost is “the prosecutor” and ODH is the “police officer” and his office “stands ready to play our role and pursue legal action on behalf of [ODH].”).
7 Although only PPSWO, WMCD, and Preterm have received letters and been inspected at this time, PPGOH and NEOWC are also subject to the Director’s Order, adopted policies identical to the ones in place at the clinics that received letters, and intend to perform surgical abortions in compliance with the Order, thus PPGOH and NEOWC also need relief.
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violation of nearly five decades of Supreme Court precedent that categorically prohibits states from banning abortion before viability, and is, therefore, unconstitutional. Some of these patients will be forced to carry pregnancies to term against their will and at risk to their health amidst a health system overburdened by responding to COVID-19. Accordingly, Plaintiffs seek to restrain and preliminarily enjoin Defendants their officers, agents, servants, employees, and attorneys, and any persons in active concert or participation with them from enforcing or complying with any interpretation of the Director’s Order that would prohibit surgical abortion procedures.
STATEMENT OF FACTS A. Director’s Order In March 2020, the United States and Ohio both declared a state of emergency related to the COVID-19 pandemic. See Director’s Order at 3; Ohio Exec. Order 2020-01D;8 Proclamation No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020). The virus has reached every State in the country, including approximately 1653 confirmed cases in Ohio and 29 deaths as of the time of filing.9 Federal and state officials and medical professionals expect a surge of infections in the coming months that will test the limits of the health care system,10 which is already facing a shortage of PPE, particularly N95 masks.11

8 Available at https://tinyurl.com/ud789de.

9 CDC, Cases in U.S. (last updated Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/cases-updates/cases-in-us.html;

ODH,

COVID-19,

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/ (last visited Mar. 30, 2020).

10 Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of

COVID-19 in the United States, CDC (last updated Feb. 29, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf.html.

11 Andrew Jacobs, Matt Richtel & Mike Baker, ‘At War With No Ammo’: Doctors Say

Shortage of Protective Gear Is Dire, N.Y. Times (Mar. 19, 2020),

https://www.nytimes.com/2020/03/19/health/coronavirus-masks-shortage.html.

4

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In light of this new reality, on March 17, 2020, Director Acton issued an order barring all “non-essential surgeries and procedures” beginning at 5 p.m. on March 18, 2020. Director’s Order at 4.12 The Order states that its purpose is to “preserv[e] personal protective equipment (PPE) and critical hospital capacity and resources within Ohio.” Id. Although the Order does not define PPE, Plaintiffs understand that term to refer, for example, to surgical masks, gloves, protective eyewear, gowns, and shoe covers, which are commonly used in surgical procedures, including surgical abortions. Liner Decl. ¶ 6; France Decl. ¶ 8; Krishen Decl. ¶ 10; Haskell Decl. ¶ 10; Burkons Decl. ¶ 10.
The Director’s Order defines a “non-essential surgery” as “a procedure that can be delayed without undue risk to the current or future health of a patient,” and lists “[e]xamples of criteria to consider,” including whether there is a “threat to the patient’s life if surgery or [the] procedure is not performed,” a “[t]hreat of permanent dysfunction of an extremity or organ system,” a “risk of metastasis or progression of staging,” or a “risk of rapidly worsening to severe symptoms (time sensitive).” Director’s Order at 4.
The Director’s Order remains in effect until the state of emergency declared by the Ohio governor no longer exists or ODH rescinds or modifies the order. Id. Federal officials and medical professionals expect the pandemic to last for a year or eighteen months.13 The current shortage of PPE is expected to continue for the next three or four months.14 The Order requires that “[e]ach
12 The Director’s Order cites as its authority section 3701.13, which allows ODH to “make special or standing orders or rules for preventing the spread of contagious or infectious diseases.” Ohio. Rev. Code § 3701.13.
13 Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. Times (Mar. 8, 2020), https://www.nytimes.com/2020/03/08/health/fauci-coronavirus.html.
14 Ctrs. for Disease Control & Prevention, Healthcare Supply of Personal Protective Equipment (last updated Mar. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/ healthcare-supply-ppe.html.
5

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hospital and outpatient surgery or procedure provider shall establish an internal governance structure to ensure” compliance with the Order, permitting individual medical institutions to use their medical judgment whether a particular procedure is essential. Director’s Order at 4.15 If a facility or physician fails to comply, ODH may petition for injunctive or other relief (Ohio Rev. Code § 3701.57), revoke the facility’s ASF license (Ohio Rev. Code § 3702.32(D)), refer for criminal prosecution (Ohio Rev. Code §§ 3701.352 and 3701.99), and/or refer to the State Medical Board for discipline (Ohio Rev. Code § 4731.22(B)(12)).
B. Abortion in Ohio According to the latest data from ODH, 55.7% of Ohio abortions in 2018 occurred before nine weeks gestational age, while 44.3% occurred at or after nine weeks.16 More than 56% of abortions in the state were surgical abortions.17 Clinical abortions are typically performed using one of two methods: medication abortion or surgical abortion. Liner Decl. ¶ 22. Both methods are equally effective in terminating a pregnancy. Id. Complications from both medication and surgical abortion are rare, and when they occur, they can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a follow-up visit. Id. Major complications—defined as complications requiring hospital admission, surgery, or blood transfusion—occur in less than one-quarter of one percent (0.23%) of all abortion cases: in 0.31% of medication abortion cases, in 0.16% of first-trimester surgical
15 Ohio State Postponing Elective Surgeries, Procedures, Beginning March 19, Ohio State News (March 17, 2020), available at https://news.osu.edu/ohio-state-postponing-electivesurgeries-procedures-beginning-march-19/
16 John Paulson & Donna L. Smith, ODH, Induced Abortions in Ohio 24 (2019), https://tinyurl.com/ufxuqpw.
17 Id. at 23.
6

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abortion cases, and in 0.41% of surgical cases in the second trimester or later. Id. Abortion-related emergency room visits constitute just 0.01% of all emergency room visits in the United States. Id.
Medication abortion involves a combination of two pills: mifepristone and misoprostol. Id. at ¶ 23. The patient takes the first medication in the health center and then, typically twenty-four to forty-eight hours later, takes the second medication at a location of their choosing, most often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage. Id. Surgical abortion is not what is commonly understood to be “surgery”; it involves no incision. Id. at ¶ 26. Rather, surgical instruments and/or gentle suction are used to safely empty the contents of the uterus. Id. For some patients, medication abortion is contraindicated or other factors counsel in favor of a surgical abortion. Id. at ¶ 27. For example, patients may be allergic to the medications or have other medical conditions that makes surgical abortion more appropriate. Id. Consistent with Ohio law, Plaintiffs provide medication abortion up to ten weeks (through seventy days) after the patient’s last menstrual period (“LMP”) and surgical abortion up to fifteen weeks and six days, nineteen weeks and six days, or twenty-one weeks and six days LMP.18 France Decl. ¶ 5; Liner Decl. ¶ 24; Krishen Decl. ¶ 6; Haskell Decl. ¶ 7; Burkons Decl. ¶ 6.
Surgical abortion requires minimal use of PPE. Liner Decl. ¶ 7. In a typical procedure, clinicians use gloves, a surgical mask, protective eyewear, disposable and/or washable gowns, and hair and shoe covers. Id. France Decl. ¶ 8; Krishen Decl. ¶ 10; Haskell Decl. ¶ 10; Burkons Decl.
18 Although medication abortion is safe and effective through eleven weeks LMP, Ohio law restricts this method to the regimen listed on federally approved label, which is ten weeks LMP. Ohio Rev. Code § 2919.123; see FDA, Mifeprex (mifepristone) Information (last updated Feb. 5, 2018), https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-andproviders/mifeprex-mifepristone-information. Ohio law prohibits abortions after twenty weeks “post-fertilization age,” which is twenty-two weeks LMP. Ohio Rev. Code § 2919.201; see Liner Decl. ¶ 31 n.9.
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¶ 10.19 The masks that Plaintiffs use for abortions are not N95 masks, the PPE that appears to be in shortest supply in battling the COVID-19 pandemic in Ohio and around the country. 20 Liner Decl. ¶ 35; France Decl. ¶ 8; Krishen Decl. ¶ 11; Haskell Decl. ¶ 10; Burkons Decl. ¶ 11. During the COVID-19 crisis, Plaintiffs have taken additional steps to conserve PPE whenever appropriate and consistent with CDC guidance.21 Even before ODH’s Order, Plaintiffs were limiting the already small number of individuals present during a surgical abortion and postponing other nonessential visits that may require PPE. Liner Decl. ¶ 38; France Decl. ¶¶ 8, 11, 12; Krishen Decl. ¶¶ 13–14; Haskell Decl. ¶¶ 13–14; Burkons Decl. ¶ 13–14. Further, when a patient is eligible for both surgical and medication abortion, patients are provided a medication abortion, unless surgical abortion is the more appropriate method. Liner Decl. ¶ 16; France Decl. ¶ 15 Krishen Decl. ¶ 17; Haskell Decl. ¶ 18; Burkons Decl. ¶ 17. Medication abortion uses less PPE than surgical abortion as the process of handing patients a pill requires no PPE at all. Liner Decl. ¶ 7.
Individuals seek abortion for a multitude of personal and complex reasons; all of which might be compounded by the current pandemic. By way of example, some patients have abortions because they conclude that it is not the right time to become a parent or have additional children, they desire to pursue their education or career, or they lack the financial resources or level of partner or familial support or stability they would want before having a child or additional children. Liner Decl. ¶ 30. Other patients seek abortions because existing medical conditions put them at
19 Gloves are needed for any ultrasound, laboratory exam, and cleaning. France Decl. ¶ 9; Liner Decl. ¶ 7; Krishen Decl. ¶ 10; Haskell Decl. ¶ 11; Burkons Decl. ¶ 10. Plaintiffs that provide care for patients for whom there is a concern for COVID19 or other respiratory disease provide masks to those patients in accordance with CDC guidance. Liner Decl. ¶ 7; Krishen Decl. ¶ 10.
21 Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States, CDC (last updated Feb. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf.html.
8

Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 9 of 27 PAGEID #: 748
greater than average risk of medical complications. Id. Indeed, while much is unknown about COVID-19, including whether it can pass to the pregnancy or complicate pregnancy, some pregnant patients may be exposed to additional health risks from the disease. ACOG has warned that “pregnant women are known to be at greater risk of severe morbidity and mortality from other respiratory infections such as influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population for COVID-19.”22
The window during which a patient can obtain in abortion in Ohio is limited. Pregnancy is usually approximately forty weeks in duration, Liner Decl. ¶ 31, and Ohio prohibits abortion after twenty-two weeks LMP, Ohio Rev. Code § 2919.201. Although abortion is a very safe medical procedure, the health risks associated with it increase as pregnancy progresses. Liner Decl. ¶ 32.23 As ACOG and other well-respected medical professional organizations have observed, abortion “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”24 For these reasons, abortion is not “a procedure that can be delayed without undue risk to the current or future health of a patient.” Liner Decl. ¶ 11 (quoting Director’s Order at 4). Indeed, delay increases the “risk of rapidly worsening to severe symptoms,” making the procedure “time sensitive.” Id. (quoting Director’s Order at 4).

22 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (last updated Mar. 13,

2020),

https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/

novel-coronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for

Healthcare Providers: COVID-19 and Pregnant Women (last updated Mar. 16, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnant-women-faq.html.

23 Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United

States 77–78, 162–63 (2018).

24 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar.

18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-

access-during-the-covid-19-outbreak.

9

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Patients generally seek abortion as soon as they are able, but many face logistical obstacles that can delay access to abortion care. Liner Decl. ¶ 33. Patients need to schedule an appointment, gather the resources to pay for the abortion and related costs,25 and arrange transportation to a clinic, time off of work, and possibly childcare during appointments. Id. Ohio legal restrictions further increase burdens on patients trying to obtain care by mandating that all patients make two in-person trips at least twenty-four hours apart to a health center in order to obtain abortion care and requiring minor patients to obtain written consent from a parent or a judicial order before they can receive care. Ohio Rev. Code §§ 2317.56, 2919.121; cf. Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796, 799–800 (S.D. Ohio 2019) (Barrett, J.) (finding host of “logistical obstacles to obtaining abortion care”). During the COVID-19 pandemic, patients must navigate these barriers against the backdrop of job insecurity, minimal public transit availability, and limited childcare assistance due to mandatory social distancing and shelter in place orders.26 Indeed, jobless claims

25 Ohio prohibits public insurance, including Medicaid, and insurance purchased on the

state health exchange from covering abortion services except in the very limited circumstances

where a patient’s life is at risk, or where the pregnancy is a result of rape or incest that has been

reported to law enforcement. Ohio Rev. Code §§ 9.04, 3901.87; Ohio Admin. Code § 5160-17-01.

26 ODH, Director’s Stay At Home Order (Mar. 22, 2020),

https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf; ODH, Governor DeWine

Announces School Closures (Mar. 12, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-

19/home/news-releases-news-you-can-use/governor-dewine-announces-school-closures; ODH,

Governor DeWine Orders Ohio Bars & Restaurants to Close (Mar. 15, 2020),

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-can-

use/governor-dewine-orders-ohio-bars-restaurants-to-close; ODH, Governor DeWine Announces

Additional

Temporary

Business

Closures

(Mar.

18,

2020),

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-can-

use/governor-dewine-announces-additional-temporary-business-closures; Ohio Exec. Order

2020-04D; see also White House, The President’s Coronavirus Guidelines for America (Mar. 16,

2020),

https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-

guidance_8.5x11_315PM.pdf; Rebecca Shabad, Fauci Predicts Americans Will Likely Need to

Stay Home for at Least Several More Weeks, NBC News (Mar. 20, 2020)

https://www.nbcnews.com/politics/donald-trump/fauci-predicts-americans-will-likely-need-stay-

home-least-several-n1164701.

10

Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 11 of 27 PAGEID #: 750
are soaring due to the virus.27 All of these factors can result in delay in obtaining care which, in turn, results in higher financial and emotional costs to the patient.
C. Plaintiffs’ Implementation of the Director’s Order Plaintiffs promptly adopted policies to comply with the Director’s Order.28 Liner Decl. ¶ 8; France Decl. ¶ 13; Krishen Decl. ¶ 15; Haskell Decl. ¶ 15; Burkons Decl. ¶ 15. Each policy forbids the performance of “non-essential surgeries and procedures that utilize PPE” until the end of Ohio’s declared emergency or the Director’s Order is modified or rescinded. Liner Decl. ¶ 8 France Decl., Ex. C; Krishen Decl., Ex. B; Haskell Decl., Ex. C; Burkons Decl., Ex. B. In accordance with the determination of the governing body for each abortion facility, each Plaintiff determined that “surgical abortion constitutes an essential surgery and may continue to be provided under the terms of the [Director’s] Order,” because “a delay in a surgical abortion will negatively affect patient health and safety.” Liner Decl. ¶ 11 France Decl., Ex. C; Krishen Decl., Ex. B; Haskell Decl., Ex. C; Burkons Decl., Ex. B. Each pointed to the plain terms of the Director’s Order, which states that “a surgery is essential if it cannot ‘be delayed without undue risk to the current or future health of a patient’ and includes, as examples of criteria to consider, the risk to the patient of rapidly worsening to severe symptoms that make the surgery time sensitive, as well as a progression of staging.” Liner Decl. ¶ 9; France Decl., Ex. C; Krishen Decl., Ex. B; Haskell Decl., Ex. C; Burkons Decl., Ex. B. Plaintiffs’ policies recognize that because “[p]regnancy has a duration of approximately forty weeks [LMP] and abortions are banned in Ohio beginning at 22
27 Scott Noll, As Ohio Unemployment Soars, Some People Are Missing Out on Benefits, News 5 Cleveland (Mar. 19, 2020), https://www.news5cleveland.com/news/local-news/as-ohiounemployment-soars-some-people-are-missing-out-on-benefits.
28 Plaintiff Dr. Liner did not adopt such a policy because she is an individual (and not a hospital or ASF); however, as medical director of Plaintiff PPSWO, she was responsible for adoption of its implementing policy.
11

Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 12 of 27 PAGEID #: 751
weeks LMP, . . . the timeframe for a patient to obtain an abortion is limited,” and that “while abortion is an extremely safe medical procedure, . . . it cannot be delayed without increasing the risk to the health of the patient.” Liner Decl. ¶ 10(a); France Decl., Ex. C; Krishen Decl., Ex. B; Haskell Decl., Ex. C; Burkons Decl., Ex. B. After Preterm, WMCD and PPSWO received letters from the Attorney General’s office threatening enforcement if they did not comply with the Director’s Order, and after further communication with the Attorney General’s office, Plaintiffs amended their policies to reflect that “physicians will determine on a case-by-case basis whether a surgical abortion or procedure constitutes an essential surgery or procedure that may continue to be provided under the terms of the Order” and that “physicians shall rely on the Director’s Order” to make that case-by-case determination. Liner Decl. ¶ 13; France Decl. ¶ 15; Krishen Decl. ¶¶ 16–17; Haskell Decl. ¶ 17; Burkons Decl. ¶¶. 16–17. Because Plaintiffs always determine the appropriate course of care for any patient on a case-by-case basis, this amendment did not result in any change to Plaintiffs’ provision of care. Liner Decl. ¶ 14; France Decl. ¶ 15; Krishen Decl. ¶¶ 16–17; Haskell Decl. ¶ 17; Burkons Decl. ¶ 16–17.
Plaintiffs’ determination that abortion is an essential surgery is supported by ACOG, the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine. These trusted national medical organizations issued a joint statement on “Abortion Access During the COVID-19 Outbreak,” which provides that “[t]o the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of
12

Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 13 of 27 PAGEID #: 752

comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”29 Liner Decl. ¶ 10(b) & Ex. D; France Decl., Ex. C; Krishen Decl.,Ex. B; Haskell Decl., Ex. C; Burkons Decl., Ex. B.
Plaintiffs also relied on the Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” which concurred with the American College of Surgeons’ recommendation that consideration of whether delay of a surgery during the pandemic is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”30 Liner Decl. ¶ 10(c) & Ex. E; France Decl., Exhibit C; Krishen Decl., Ex. B; Haskell Decl., Ex. C; Burkons Decl., Ex. B.
In addition, to complying with the Director’s Order, Plaintiffs are committed to following all recommendations in an effort to “flatten the curve,” protect patients and staff, and minimize the use of PPE. Liner Decl. ¶¶ 6, 39; France Decl. ¶ 10; Krishen Decl. ¶ 12; Haskell Decl. ¶ 12; Burkons Decl. ¶ 12. For example, Plaintiffs have reduced the number of people allowed in their facilities, as well as in procedure rooms and changed the flow of patients to ensure recommended social-distancing, and they screen patients and staff for COVID-19 symptoms. Liner Decl. ¶ 39; France Decl. ¶¶ 11–12; Krishen Decl. ¶¶ 13–14; Haskell Decl. ¶¶ 13–14; Burkons Decl. ¶¶ 13–14.

29 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar.

18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-

access-during-the-covid-19-outbreak.

30 Ambulatory Surgery Ctr. Ass’n, COVID-19: Guidance for ASCs on Necessary Surgeries

(last

updated

Mar.

19,

2020),

https://www.ascassociation.org/asca/resourcecenter/latestnewsresourcecenter/covid-19/covid-19-

guidance (quoting Am. Coll. of Surgeons, COVID-19: Recommendations for Management of

Elective Surgical Procedures (Mar. 13, 2020), https://www.facs.org/about-acs/covid-

19/information-for-surgeons/elective-surgery).

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Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 14 of 27 PAGEID #: 753
D. Banning Surgical Abortion Will Cause Irreparable Harm As described above, without any clear guidance from the ODH and in light of the statements of the Director, Governor, and Attorney General and the actions of ODH, Plaintiffs and their physicians credibly fear being immediately shut down and prosecuted, see supra pgs. 2–3. Such enforcement will deprive Plaintiffs’ patients of their constitutional right to terminate pregnancy and cause them constitutional, physical, and emotional harm, all of which are irreparable. See Liner Decl. ¶¶ 42, 45. Without access to Plaintiffs’ services, patient care will be delayed and, in some cases, denied altogether. See Liner Decl. ¶ 46; France Decl. ¶ 22; Krishen Decl. ¶¶ 20–21; Haskell Decl. ¶ 24; Burkons Decl. ¶¶ 20–21. Moreover, because pregnant patients will remain users of the healthcare system as long as they are pregnant, banning surgical abortion will result in minimal, if any, conservation of PPE, Liner Decl. ¶ 37, and may, in fact, result in increased use of PPE, see infra pg. 20–21. The State has no justification for imposing these harms on Plaintiffs’ patients, particularly absent an overriding benefit.
ARGUMENT Plaintiffs seek a temporary restraining order, and thereafter, a preliminary injunction, to prevent the Director’s Order from inflicting harm on Plaintiffs’ patients by banning them from accessing previability abortion in Ohio. In ruling on such a motion, the Court considers four factors, all of which weigh heavily in Plaintiffs’ favor: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause a substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.” Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015) (quoting Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th Cir. 2012)).
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Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 15 of 27 PAGEID #: 754
As discussed below, Plaintiffs are entitled to injunctive relief because enforcing the Director’s Order to ban abortion directly contravenes decades of binding Supreme Court precedent holding that a state may not ban abortion before the point of viability, and thus Plaintiffs will succeed on the merits. Additionally, enforcement of the Director’s Order to ban surgical abortion will inflict severe and irreparable harm on Plaintiffs’ patients; the balance of hardships weighs decisively in Plaintiffs’ favor; and the public interest would be served by blocking the enforcement of the unconstitutional and harmful order with respect to abortions. This Court therefore should grant injunctive relief.
I. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR SUBSTANTIVE DUE PROCESS CLAIM. Plaintiffs are certain to succeed on the merits of their claim that applying the Director’s
Order to ban surgical abortion violates Plaintiffs’ patients’ liberty rights under the Fourteenth Amendment by banning abortion before viability. Nearly five decades ago, the Supreme Court struck down as unconstitutional a state criminal abortion statute proscribing all abortions except those performed to save the life of the pregnant person. Roe v. Wade, 410 U.S. 113, 166 (1973). Specifically, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution protects the right to choose abortion, id. at 153–54, and prior to viability, a state has no interest sufficient to justify a ban on abortion, id. at 163–65. Rather, a state may proscribe abortion only after viability, and even then, it must allow abortion where necessary to preserve the life or health of the patient. Id. at 163–64.
The Supreme Court has repeatedly adhered to this core holding. For example, more than twenty-five years ago, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed Roe’s “central principle” that “[b]efore viability, the State’s interests are not strong enough to support a prohibition on abortion.” 505 U.S. 833, 846, 871 (1992); id. at 871 (asserting
15

Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 16 of 27 PAGEID #: 755
that any state interest is “insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions”). Although a plurality in Casey announced an “undue burden” standard, under which “a provision of law [restricting previability abortion] is invalid[] if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion,” 505 U.S. at 878 (plurality opinion), it emphasized:
Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. Id. at 879; see also id. at 846 (“Roe’s essential holding . . . is a recognition of the right of the woman to choose to have an abortion before viability.”). Roe’s central principle has been repeatedly reaffirmed by the Court, including as recently as 2016. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). Unsurprisingly, attempts to ban abortion prior to viability have been uniformly rejected by the courts. See, e.g., MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772–73 (8th Cir. 2015), cert. denied, 136 S. Ct. 981 (2016) (ban on abortions after six weeks); Edwards v. Beck, 786 F.3d 1113, 1117–19 (8th Cir. 2015), cert. denied, 136 S. Ct. 895 (2016) (ban on abortions after twelve weeks); Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019) (ban on abortions starting at fifteen weeks); Isaacson v. Horne, 716 F.3d 1213, 1217, 1231 (9th Cir. 2013), cert. denied, 134 S. Ct. 905 (2014) (ban on abortions starting at twenty weeks); Jane L. v. Bangerter, 102 F.3d 1112, 1117–18 (10th Cir. 1996), cert. denied, 520 U.S. 1274 (1997) (ban on abortions starting at twentytwo weeks); Sojourner T. v. Edwards, 974 F.2d 27, 29, 31 (5th Cir. 1992), cert denied, 507 U.S. 972 (1993) (ban on all abortions); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368–69, 1371–72 (9th Cir. 1992), cert. denied, 506 U.S. 1011 (1992) (ban on all abortions); Bryant v. Woodall, 363 F. Supp. 3d 611, 630–32 (M.D.N.C. 2019) (ban on abortions starting at
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Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 17 of 27 PAGEID #: 756
twenty weeks); EMW Women’s Surgical Ctr., P.S.C. v. Meier, 373 F. Supp. 3d 807 (W.D. Ky. 2019) (ban on a second-trimester abortion method); EMW Women’s Surgical Ctr., P.S.C. v. Beshear, No. 3:19-CV-178-DJH, 2019 WL 1233575, at *1 (W.D. Ky. Mar. 15, 2019) (ban on abortions after six weeks); see also Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 201 (6th Cir. 1997) (striking down a ban on a second-trimester abortion method because it would “inhibit[] the vast majority of second trimester abortions” and “would clearly have the effect of placing a substantial obstacle in the path of a woman seeking a pre-viability abortion”).
In 2019, several states passed previability abortion bans, and in each place where a ban restricted access to abortion, courts have blocked it from taking effect. See, e.g., Robinson v. Marshall, 415 F. Supp. 3d 1053 (M.D. Ala. 2019) (ban on nearly all abortions); SisterSong Women of Color Reprod. Justice Collective v. Kemp, 410 F. Supp. 3d 1327 (N.D. Ga. 2019) (ban on abortions after six weeks); Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson, 389 F. Supp. 3d 631 (W.D. Mo. 2019), modified, 408 F. Supp. 3d 1049 (W.D. Mo. 2019) (ban on abortions after various weeks); Little Rock Family Planning Servs. v. Rutledge, 397 F. Supp. 3d 1213 (E.D. Ark. 2019) (ban on abortions after eighteen weeks); Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549 (S.D. Miss. 2019), aff’d, 951 F.3d 246 (5th Cir. 2020) (ban on abortions after six weeks); Order Granting Stipulated Preliminary Injunction as to State Defendants, Planned Parenthood Ass’n of Utah v. Miner, No. 2:19-cv-00238 (D. Utah Apr. 18, 2019), ECF No. 34 (ban on abortions after eighteen weeks).
Indeed, that includes a previous order in this case, where this Court preliminarily enjoined Ohio’s 2019 ban on abortion after six weeks, see Preterm-Cleveland, 394 F. Supp. 3d at 796, and follows other cases in which this Court has enjoined recent attempts by the Ohio legislature to ban previability abortions. Planned Parenthood Sw. Ohio Region v. Yost, 375 F. Supp. 3d 848 (S.D.
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Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 18 of 27 PAGEID #: 757
Ohio 2019) (Barrett, J.) (partially preliminarily enjoining a ban on a second-trimester abortion method); Preterm-Cleveland v. Himes, 294 F. Supp. 3d 746, 748 (S.D. Ohio 2018) (Black, J.) (preliminarily enjoining Ohio’s ban on abortion when one of the patient’s reasons is an indication of Down syndrome, because “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability” (quoting Casey, 505 U.S. at 879)), aff’d, 940 F.3d 318 (6th Cir. 2019), reh’g en banc granted, opinion vacated, 944 F.3d 630 (6th Cir. 2019).
Defendants’ actions, unless enjoined, threaten to ban all abortions in Ohio starting at ten weeks LMP and even earlier among patients for whom medication abortion is not appropriate. Cf. Jackson Women’s Health, 945 F.3d at 271 (holding that challenged law was a previability ban on abortion and not a regulation on abortion because it “peg[ged] the availability of abortions to a specific gestational age that undisputedly prevents the abortions of some non-viable fetuses”). As such, it is a ban on previability abortions, which contravenes decades of Supreme Court precedent, including Roe.
Because Defendants’ actions will operate as a previability abortion ban, this Court need not look further; however, even if the Court were to apply the undue-burden test from Casey, Plaintiffs would certainly succeed on the merits. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877. A restriction that, “while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Whole Woman’s Health, 136 S. Ct. at 2309 (quoting Casey, 505 U.S. at 877). As the Supreme Court has held, “Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2298.
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Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 19 of 27 PAGEID #: 758
Here, the burdens could not be greater. Applying the Director’s Order to ban surgical abortion would ban abortion entirely for patients with pregnancies beyond ten weeks LMP and those with earlier pregnancies for whom medication abortion is not appropriate. Thus, the Director’s Order is not just a substantial obstacle to obtaining an abortion, it will operate as a complete one. The Order could remain in effect for months, which would push many patients past the legal limit for abortion in Ohio. Moreover, even if some patients affected by the Order are able to obtain an abortion after it is lifted, they will still suffer increased risk to their health as a result of the delay in access to care. Liner Decl. ¶ 43. Thus, the enforcement of the Director’s Order in a way that bans surgical abortion undoubtedly harms individuals seeking abortion.31
These exceedingly harmful burdens cannot be outweighed by either of the two interests the State asserts here: preserving hospital capacity and PPE. Plaintiffs share those interests, but a ban on surgical abortions does not serve either one. As to the first interest, legal abortion is safe, and complications associated with abortion—including those requiring hospital care—are exceedingly rare. Liner Decl. ¶ 22; see also Whole Woman’s Health, 136 S. Ct. at 2311–12, 2315. Nearly all abortions in Ohio are provided in outpatient facilities, such as Plaintiffs’ ASFs, not hospitals.32 Thus, Plaintiffs’ provision of abortion would not deplete hospital capacity. As to preserving PPE, as described above, see supra 8, surgical abortion uses minimal PPE and providers are already
31 Even before ten weeks, the burdens that the Director’s Order places on patients for whom surgical abortion is medically indicated or the only appropriate option are severe. Cf. Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 514 (6th Cir. 2006) (affirming preliminary injunction against abortion restriction on medication abortion that contained no health exception in light of evidence that medication abortion was relatively safer for some patients than surgical abortion).
32 John Paulson & Donna L. Smith, ODH, Induced Abortions in Ohio 22 (2019) https://tinyurl.com/ufxuqpw (82 of over 20,000 abortions were performed in a hospital).
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Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 20 of 27 PAGEID #: 759
taking all appropriate steps to conserve PPE whenever possible. As such, banning surgical abortion does little to preserve PPE.
Notably, Plaintiffs could make further progress in preserving PPE and reduce overall contagion risks during the pandemic, but for the medically unnecessary abortion restrictions in Ohio law that limit Plaintiffs’ ability to adapt to this crisis. For example, Ohio could eliminate its requirements that patients make an extra in person visit to the health center and physicians determine the presence fetal heart tone 24 hour prior to the abortion, or allow patients who can safely utilize medication abortion through eleven weeks to do so. Such changes could reduce the opportunity for the virus to spread and further minimize the need for PPE.
Indeed, far from being necessary to address the COVID-19 crisis, applying the Order to ban surgical abortion is unlikely to save any PPE and may well exacerbate the COVID-19 crisis. Patients who are prevented from obtaining abortion care must still seek medical care to maintain their health and well-being. Liner Decl. ¶ 37. Thus, pregnant patients will require care from providers using PPE whether the pregnancy is terminated or not. Id.33 Moreover, given the vagueness of “elective” and “nonessential” in this context, patients who are facing serious health risks because of continued pregnancy may be delayed in accessing care because patients and providers are uncertain as to whether these risks rise to the level of making the abortion “essential.” See supra 2–3 & n.5 (reflecting Governor Dewine’s narrow interpretation of essential). Such patients could ultimately require more invasive care (with attendant use of PPE) or even hospitalbased care. at ¶ 46. Finally, in the event that this crisis continues for months—as it is expected to do—Defendants’ actions will result in people being forced to give birth against their will. This
33 Those patients who are able to obtain care out of state will face increased risk of exposure to the virus because of this travel and providers treating those patients will still be using PPE in any case.
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will necessitate not just the use of PPE, but also the use of hospital beds, which are also in short supply during this crisis. Id.
The benefit of reducing the use of PPE in one segment of the healthcare system cannot possibly outweigh the burdens here, where abortion care is time-sensitive, where delay increases the risk to the patient’s health, and where barring abortion (but not any other essential surgery or procedure) would have only a minimal negligible and temporary effect on the availability of PPE, if any, and have no effect on the PPE in shortest supply (the N95 mask). Plaintiffs therefore have established that they are likely to succeed on the merits of their claim that the Director’s Order, as applied to ban surgical abortion, violates the substantive due process rights of their patients. II. PLAINTIFFS’ PATIENTS WILL SUFFER IRREPARABLE HARM IF THE BAN
IS ENFORCED. Plaintiffs’ patients will suffer serious and irreparable harm in the absence of a temporary restraining order and preliminary injunction. Unless enjoined, Defendants’ actions will prevent Ohioans from exercising their fundamental constitutional right to terminate a pregnancy. The Sixth Circuit has long made clear that if “a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” Am. Civil Liberties Union of Ky. v. McCreary Cty., 354 F.3d 438, 455 (6th Cir. 2003) (emphasis added) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)); accord Mich. State A. Phillip Randolph Inst. v. Johnson, 833 F.3d 656, 669 (6th Cir. 2016) (“[W]hen constitutional rights are threatened or impaired, irreparable injury is presumed.” (internal citations omitted)); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (same); see also Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003) (“[T]he loss of constitutional rights for even a minimal amount of time constitutes irreparable harm.”). Because Defendants’ actions with respect to the Director’s Order impair Plaintiffs’ patients’ rights guaranteed by the Fourteenth Amendment to the United States Constitution, they necessarily inflict irreparable harm and should
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be enjoined. See Preterm-Cleveland, 394 F. Supp. 3d at 803 (determining that Ohio’s six-week abortion ban “would, per se, inflict irreparable harm” if enforced).
Moreover, Plaintiffs’ patients will be prohibited from obtaining a desired abortion, which can result in physical, emotional, and psychological harms, all of which are irreparable. Liner Decl. ¶ 42–46.34 As many medical professional organizations, including ACOG, have concluded, abortion is “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”35 See Ohio Rev. Code § 2919.201 (prohibiting abortions after twenty-two weeks LMP). Forcing patients to forgo abortion care and remain pregnant against their will inflicts serious physical, emotional, and psychological consequences that alone constitute irreparable harm. See e.g., Elrod, 427 U.S. at 373–74; Planned Parenthood of Ariz., Inc. v. Humble, 753 F.3d 905, 911 (9th Cir. 2014); Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 796 (7th Cir. 2013). Likewise, a delay in obtaining abortion care causes irreparable harm by “result[ing] in the progression of a pregnancy to a stage at which an abortion would be less safe, and eventually illegal.” Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d 809, 832 (7th Cir. 2018) (quoting Van Hollen, 738 F.3d at 796); see also, e.g., Planned Parenthood Sw. Ohio Region v. Hodges, 138 F. Supp. 3d 948, 960 (S.D. Ohio 2015) (finding irreparable harm where “patients could face a delay” in obtaining abortion care); Doe v. Barron, 92 F. Supp. 2d 694, 696–97 (S.D. Ohio 1999) (same). This “disruption or denial of . . . patients’ health care cannot be undone after a trial on the merits.” Planned Parenthood of Kan. v. Andersen, 882 F.3d 1205, 1236 (10th Cir. 2018) (internal
34 See also ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-onabortion-access-during-the-covid-19-outbreak. (the “consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being”).
35 Id.
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quotation marks omitted), cert. denied sub nom. Andersen v. Planned Parenthood of Kan. & MidMo., 139 S. Ct. 638 (Mem.) (2018).
In sum, applying the Director’s Order to ban surgical abortion will cause irreparable injury to Plaintiffs’ patients and should therefore be enjoined while this litigation proceeds. III. THE BALANCE OF HARMS AND PUBLIC INTEREST SUPPORT INJUNCTIVE
RELIEF. Plaintiffs’ patients will suffer numerous irreparable harms without an injunction, and Plaintiffs’ requested relief will simply preserve “the status quo that has been in place for more than 40 years since Roe was decided, and some 25 years since Casey followed.” Preterm-Cleveland, 394 F. Supp. 3d at 803. In addition, given the indeterminate length of the Director’s Order, some of Plaintiffs’ patients will be forced to forgo an abortion entirely and carry an unwanted pregnancy to term. As the Sixth Circuit has made clear, “[w]hen a constitutional violation is likely . . . the public interest militates in favor of injunctive relief because it is always in the public interest to prevent violation of a party’s constitutional rights.” Am. Civil Liberties Union Fund of Mich., 796 F.3d at 649 (alternations in original) (quoting Miller v. City of Cincinnati, 622 F.3d 524, 540 (6th Cir. 2010)); accord Mich. State, 833 F.3d at 669 (same); Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 896 (6th Cir. 2012) (“[T]he public interest is promoted by the robust enforcement of constitutional rights . . . .”); G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (same). Moreover, as set forth more fully above, the benefits of a negligible potential reduction in the use of some PPE (and not the most limited PPE), if any, by abortion providers does not, ultimately, result in any net saving of PPE and—more importantly—is outweighed by the harm of eliminating abortion access. This is especially true here, where Defendants are attempting to ban abortion in the midst of a pandemic that may increase the risks of continuing a pregnancy and thus
23

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may ultimately further tax the already overburdened health care system. Particularly where, as here, Plaintiffs are already taking steps—in line with those required of other medical professionals who continue to provide essential health care and CDC guidance—to preserve PPE as much as possible, see supra 8, injunctive relief is supported by the balance of harms and the public interest. IV. A BOND IS NOT NECESSARY IN THIS CASE.
This Court should waive the Federal Rule of Civil Procedure 65(c) bond requirement. The Sixth Circuit has long held “that the district court possesses discretion over whether to require the posting of security.” Appalachian Reg’l Healthcare, Inc. v. Coventry Health & Life Insurance Co., 714 F.3d 424, 431 (6th Cir. 2013) (emphasis omitted) (quoting Molton Co. v. Eagle-Picher Indus., 55 F.3d 1171, 1176 (6th Cir. 1995)); see also Molton Co., 55 F.3d at 1176 (affirming district court decision to require no bond because of “the strength of [the plaintiff’s] case and the strong public interest involved”); Preterm-Cleveland, 394 F. Supp. 3d at 804 (waiving bond). This Court should use its discretion to waive the bond requirement here, where the relief sought will result in no monetary loss to Defendants.
CONCLUSION For these reasons, this Court should grant Plaintiffs’ motion for a temporary restraining order and/or preliminary injunction to enjoin Defendants from applying the Director’s Order to prohibit surgical abortions.
Dated: March 30, 2020
Respectfully Submitted, /s/ B. Jessie Hill B. Jessie Hill #0074770 Trial Attorney for Plaintiffs Cooperating Counsel for the American Civil
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Liberties Union of Ohio Foundation American Civil Liberties Union of Ohio 4506 Chester Ave. Cleveland, OH 44103 (216) 368-0553 (216) 368-2086 (fax) bjh11@cwru.edu Counsel for Plaintiff Preterm-Cleveland and Northeast Ohio Women’s Center
Elizabeth Watson* Rachel Reeves* Brigitte Amiri* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2633 (212) 549-2650 (fax) ewatson@aclu.org rreeves@aclu.org bamiri@aclu.org Counsel for Plaintiff Preterm-Cleveland and Northeast Ohio Women’s Center
Carrie Y. Flaxman** Richard Muniz* Planned Parenthood Federation of America 1110 Vermont Ave NW, Suite 300 Washington, DC 20005 (202) 973-4800 (202) 296-3480 (fax) carrie.flaxman@ppfa.org richard.muniz@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, and Sharon Liner, M.D.
Hana Bajramovic** Planned Parenthood Federation of America 123 William Street, Floor 9
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New York, NY 10038 (212) 541-7800 (212) 247-6811 (fax) hana.bajramovic@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, and Sharon Liner, M.D
Jennifer L. Branch # 0038893 Alphonse A. Gerhardstein # 0032053 Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202 (513) 621-9100 (513) 345-5543 (fax) jbranch@gbfirm.com agerhardstein@gbfirm.com Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Sharon Liner, M.D., Women’s Med Group Professional Corporation and Capital Care Network of Toledo
Freda J. Levenson #0045916 American Civil Liberties Union of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44103 (614) 586-1972 x 125 (216) 472-2210 (fax) flevenson@acluohio.org Counsel for Plaintiff Preterm-Cleveland and Northeast Ohio Women’s Center
* Admitted pro hac vice ** Pro hac vice forthcoming
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Case: 1:19-cv-00360-MRB Doc #: 42 Filed: 03/30/20 Page: 27 of 27 PAGEID #: 766 Certificate of Compliance with SDOH Local Rule 65.1
Trial Attorney for Plaintiffs has served Counsel for Defendants with a copy of the Motion to Supplement the Complaint, Proposed Supplemental Complaint, Motion for Preliminary Injunction and/or Temporary Restraining Order, along with the attached Declarations via email of this Motion and that service has been accomplished.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Preterm-Cleveland, et al. Plaintiff,
v.
David Yost, et al. Defendants.

: Case No. 1:19-cv-360 : : Judge: Michael R. Barrett : : : : :

DECLARATION OF SHARON A. LINER, M.D., IN SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER I, Sharon A. Liner, M.D., declare as follows: 1. I am a board-certified family physician with 16 years of experience in women’s health. I am licensed to practice medicine in the state of Ohio. I earned a B.S. in Medical Technology from Michigan State University and graduated from medical school at Michigan State University, College of Human Medicine. I completed my residency in Family Medicine at the University of Cincinnati. 2. I am the Medical Director of Planned Parenthood Southwest Ohio Region (PPSWO). I am also PPWSO’s Director of Surgical Services, a position I have held for nearly 15 years. I have worked as a physician for PPSWO since 2004, providing reproductive health care to patients. PPSWO operates a licensed ambulatory surgical facility in Cincinnati, Ohio. 3. In my current roles as the Director of Surgical Services and Medical Director at PPSWO, I oversee all medical services provided at PPSWO, including supervision of the physicians and clinicians who provide that care, including abortion. I also am responsible for developing PPSWO’s policies and procedures.

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4. Since 2002, I have provided abortions in outpatient settings. In my current practice, I provide medication abortions up to 70 days (or 10 weeks) of pregnancy as measured from the first day of the woman’s last menstrual period (LMP) and surgical abortions through 21 weeks 6 days LMP.
5. A true and correct copy of my curriculum vitae is attached as Exhibit A. Director’s Order and Attorney General’s Enforcement Threats 6. On March 17, 2020, the Director of the Ohio Department of Health, Dr. Amy Acton, issued an order barring all “non-essential surgeries and procedures” beginning at 5 p.m. on March 18, 2020. (“Director’s Order” at 4, Exhibit B). The Director’s Order states that its purpose is to “preserv[e] personal protective equipment (PPE) and critical hospital capacity and resources within Ohio.” Id. Although the order does not define PPE, I understand that term to refer to, for example, surgical masks, gloves, protective eyewear, gowns, and hair and shoe covers, which are commonly used in surgical procedures, including surgical abortions. In order to comply with the Director’s Order, PPSWO is committed to following all recommendations in an effort to “flatten the curve,” protect patients and staff, and maximize the availability of PPE. 7. Neither method of abortion requires extensive PPE. Medication abortion uses less PPE than surgical abortion. The process of handing patients a pill requires no PPE. Surgical abortion requires the minimal use of some or all of the following PPE: one pair of non-sterile gloves, a surgical mask, protective eyewear that can be reprocessed according to CDC guidelines, disposable and washable gowns.1 For an ultrasound or laboratory exam, including one that accompanies medication or surgical abortion, we use only non-sterile gloves.
1 Per CDC guidance, Plaintiffs provide patients for whom there is a concern for COVID-19 or other upper respiratory disease with a mask.
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8. As required by the Director’s Order, PPSWO promptly adopted a policy to implement the Director’s Order, which went into effect March 18, 2020 before 5:00 p.m.2 PPSWO’s policy forbids the performance of “non-essential surgeries and procedures that utilize PPE” until the end of Ohio’s declared emergency or the Director’s Order is modified or rescinded. PPSWO’s policy also requires staff to make every effort to preserve PPE during essential surgeries and procedures, including by limiting the number of individuals present who would require PPE. A true and accurate copy of PPSWO’s policy is attached as Exhibit C.3
9. The policy requires PPSWO physicians to determine whether a “surgical abortion or procedure constitutes an essential surgery or procedure that may continue to be provided under the terms of the [Director’s] Order.” In making that determination, the policy directs physicians to consider the plain terms of the Director’s Order, which states that “a surgery is essential if it cannot ‘be delayed without undue risk to the current or future health of a patient’ and includes, as examples of criteria to consider, the risk to the patient of rapidly worsening to severe symptoms that make the surgery time sensitive, as well as a progression of staging.”
10. In addition, the policy advised physicians to consider other important factors in making that determination, including:
a. Because “[p]regnancy has a duration of approximately forty weeks as measured from the first day of the woman’s last menstrual period (LMP) and abortions are banned in Ohio beginning at 22 weeks LMP,” and that “while abortion is an extremely safe medical procedure, . . . it cannot be delayed without increasing the risk to the health of the patient.” (citing
2 As an individual Plaintiff, I did not personally adopt such a policy, but as medical director of Plaintiff PPSWO, I am responsible for PPSWO adopting and implementing this policy. I have seen all Plaintiffs’ policies and they are identical to PPSWO’s.
3 Exhibit C includes PPSWO’s original and revised policies.
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Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States 77–78, 162–63 (2018)). b. the views of the American College of Obstetricians and Gynecologists (“ACOG”), the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal–Fetal Medicine, which stated that to “the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure’ because it ‘is an essential component of comprehensive health care’ and ‘a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.” (Exhibit D). c. the Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” dated March 19, 2020, which concurred with the American College of Surgeons’ recommendation that consideration of whether delay of a surgery during the pandemic is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.” (Exhibit E).
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11. Abortion is not “a procedure that can be delayed without undue risk to the current or future health of a patient.” (quoting Director’s Order, Ex. B at 4). Delay increases the “risk of rapidly worsening to severe symptoms,” making the procedure “time sensitive.” (quoting Director’s Order, Ex. B at 4). PPSWO determined, with the ASF’s governing body’s approval, that “surgical abortion constitutes an essential surgery and may continue to be provided under the terms of the [Director’s] Order,” because “a delay in a surgical abortion will negatively affect patient health and safety.” (Ex. C p. 7).
12. Beginning with the opening of business on March 19, 2020, PPSWO implemented the policy, stopped performing all non-essential procedures, reduced as much as possible the use of PPE, and continued to emphasize that we are to act consistent with the Director’s Order.
13. On March 20, 2020, PPSWO received a letter via email from the Ohio Attorney General, stating “[o]n behalf of the Department, you and your facility are ordered to immediately stop performing non-essential and elective surgical abortions.” The letter also cautions that “[i]f you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the attached order, the Department of Health will take all appropriate measures.” A true and correct copy of the Attorney General’s Letter is attached as Exhibit F.
14. PPSWO responded to the Attorney General by confirming its compliance with the Director’s Order, revising its policy to make clear that physicians would determine on a case-bycase basis whether a surgical abortion or other procedure constitutes an essential surgery or procedure, and offering to share the revised policy. Because PPSWO’s physicians always determine the appropriate course of care for any patient on a case-by-case basis, this amendment
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did not result in any change to PPSWO’s provision of care. PPSWO implemented the revised policy on March 24, which was the first surgery day after receiving the Attorney General’s Letter. If a physician determines a surgical abortion or other procedure is essential, the physician documents that determination in the patient’s chart.
15. PPSWO has made other changes to minimize the use of PPE and minimize risk of exposure to COVID-19 such as extending refill prescriptions without patients coming in, reducing the number of persons in the surgery center, excluding visitors with patients unless medically required (or a parent accompanying a minor), excluding visitors who are at risk of transmitting COVID-19 after screening, maximizing telehealth services, and not offering patients surgical abortions when medication abortions are available (under 70 days of pregnancy) and are not medically contraindicated.
16. When a PPSWO patient is eligible for both surgical and medication abortion, patients are provided a medication abortion, unless surgical abortion is the more appropriate method.
ODH Investigation of Compliance 17. PPSWO did not receive any further communication from the Attorney General. On March 26, 2020, two ODH inspectors arrived at PPSWO for an unannounced inspection of a complaint, seeking information regarding PPSWO’s compliance with the Director’s Order. PPSWO fully cooperated with the inspection. Although the ODH inspectors would not tell PPSWO the source of the complaint, news reporting suggests the complaint came from antiabortion activists.4
4 https://www.fox19.com/2020/03/23/ohio-abortion-providers-ordered-stop-amid-covidoutbreak/
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18. While the first day of the inspection was still ongoing, Governor DeWine announced in a press conference that an essential abortion would be one that “is done to save someone’s life.”5 At the same conference, Director Acton said that ODH had “listened to the AG” and began to investigate “violations [of the Order] across the state,” including at abortion clinics.
19. That same day, Attorney General Yost issued a press release vowing to “take quick enforcement action” once ODH’s investigation was completed.6
20. The two inspectors returned on March 27, 2020 to continue their investigation. After two days of inspections, the inspectors left without telling PPSWO whether or not they had found violations of the Director’s Order or any other regulation. This was a break with established ODH practice and procedure of informing PPSWO of the inspection results before leaving. The inspectors said their superiors would make that determination at an unspecified later date and ODH would notify PPSWO of the findings.
21. Applying the Director’s Order to ban surgical abortion indefinitely, by considering surgical abortion “non-essential,” singles out patients seeking abortion to bear a far heavier burden than any other patients in need of a time-sensitive surgery or procedure whose delay could have devastating, long-lasting effects on health and well-being. Such enforcement of the Director’s Order amounts to a de facto ban on abortion for all patients who are more than ten weeks pregnant (when medication abortion, an alternative to surgical abortion for some but not all patients, is no longer available), and a ban on abortion at even earlier gestational points among patients for whom medication abortion cannot appropriately be used.
5 https://www.ideastream.org/gov-mike-dewine-coronavirus-update-march-26-2020 Starting at 54:00.
6 Attorney General Yost press release is attached as Exhibit G.
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PPSWO’s Provision of Abortion 22. Legal abortion is one of the safest medical procedures in the United States.7 There are two main methods of abortion: medication abortion and surgical abortion. Both methods are effective in terminating a pregnancy.8 Complications from both medication and surgical abortion are exceedingly rare, and when they occur they can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a follow-up visit. Major complications—defined as complications requiring hospital admission, surgery, or blood transfusion—occur in less than onequarter of one percent (0.23%) of all abortion cases: in 0.31% of medication abortion cases, in 0.16% of first-trimester surgical abortion cases, and in 0.41% of surgical cases in the second trimester or later.9 Abortion-related emergency room visits constitute just 0.01% of all emergency room visits in the United States.10 23. Medication abortion involves a combination of two pills: mifepristone and misoprostol.11 The patient takes the first medication in the health center and then, typically twentyfour to forty-eight hours later, takes the second medication at a location of their choosing, most often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage. 24. Current medical evidence demonstrates that medication abortion is safe and effective through eleven weeks of pregnancy as measured from the first day of a pregnant patient’s
7 Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States 77–78, 162–63 (2018).
8 Luu Doan Ireland et al., Medical Compared With Surgical Abortion for Effective Pregnancy Termination in the First Trimester, 126 Obstetrics & Gynecol. 22 (2015).
9 Ushma Upadhyay, et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics & Gynecol. 175 (2015).
10 Ushma Upadhyay, et al., Abortion-related Emergency Room Visits in the United States: An Analysis of a National Emergency Room Sample, 16(1) BMC Med. 1, 1 (2018).
11 Nat’l Acads., supra note 7, at 51.
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last menstrual period (“LMP”). However, Ohio law (Ohio Rev. Code § 2919.123) restricts the first drug used in medication abortion to use as described in the federally approved label, which is for pregnancies less than ten weeks. See FDA, Mifeprex (mifepristone) Information (last updated Feb. 5, 2018), https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-andproviders/mifeprex-mifepristone-information. Accordingly, although PPSWO would provide medication abortion up to eleven weeks LMP if it could legally do so, it currently cannot provide this method of abortion in Ohio beyond ten weeks LMP (through seventy days).
25. Ohio law also requires that medication abortion be preceded by an ultrasound at least twenty-four hours in advance, Ohio Rev. Code § 2919.193, .194, even though this step is not medically necessary in every case.
26. Surgical abortion is not what is commonly understood to be “surgery”; it involves no incision, no need for general anesthesia, and no requirement of a sterile field. Up to approximately fifteen weeks LMP, clinicians use the aspiration abortion technique, which involves dilating the natural opening of the cervix using medications and/or small, expandable rods, inserting a narrow, flexible tube into the uterus, and emptying the uterus through suction. This procedure typically takes five to ten minutes. To perform abortions after that gestational point in pregnancy, clinicians must dilate the cervix further and use instruments to empty the uterus, which is called the dilation and evacuation (“D&E”) technique. Later in the second trimester, the clinician may begin cervical dilation the day before the procedure itself. PPSWO performs surgical abortion up to twenty-one weeks, six days LMP.
27. For some patients with pregnancies less than ten weeks LMP, medication abortion is not available because it is contraindicated or there are other factors that necessitate a surgical
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abortion, such as where the patient has an allergy to the medications or other medical conditions, such as a bleeding disorder or low hemoglobin, that make surgical abortion relatively more safe.12
28. According to the latest data from ODH, 55.7% of Ohio abortions in 2018 occurred before nine weeks LMP, while 44.3% occurred at or after nine weeks. More than 56% of abortions in the state were surgical abortions.13
29. PPSWO has performed 124 medication abortions and 493 surgical abortions during the first two months on 2020; 389 of the surgical abortions were before 10 weeks LMP and 104 were 10 weeks or greater. In 2019 PPSWO performed 769 medication abortions and 2,561 surgical abortions; 1731 of the surgical abortions were before 10 weeks LMP and 830 were 10 weeks or greater.
30. Individuals seek abortion for a multitude of complicated and personal reasons, which may all be compounded by the current pandemic. By way of example, some patients have abortions because they conclude it is not the right time to become a parent or have additional children,14 they desire to pursue their education or career, or they lack the necessary financial resources or a sufficient level of partner or familial support or stability.15 Other patients seek
12 Nat’l Acads., supra note 7, at 51–52. 13 https://odh.ohio.gov/wps/wcm/connect/gov/534ddb3a-febd-4e2a-99ee-90249240bcdd/VSAbortionReport2018.pdf.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1 HGGIK0N0JO00QO9DDDDM3000-534ddb3a-febd-4e2a-99ee-90249240bcdd-mS77yg14 Indeed, a majority of women having abortions in the United States already have at least one child. Guttmacher Inst., Induced Abortions in the United States 1 (2018), https://www.guttmacher.org/sites/default/files/factsheet/fb_induced_abortion.pdf; see also Jenna Jerman, Rachel K. Jones & Tsuyoshi Onda, Guttmacher Inst., Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008, at 6, 7 (2016), https://www.guttmacher.org/sites/default/files/report_pdf/characteristics-us-abortion-patients2014.pdf. 15 That strain is all the more apparent if one considers that the vast majority—approximately 75%—of abortion patients nationwide are poor or have low incomes. Guttmacher Inst., Induced Abortions in the United States 1, supra note 14.
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abortions because continuing with the pregnancy could pose a greater risk to their health.16 Indeed, while much is unknown about COVID-19, including whether it can complicate pregnancy, some pregnant people may be exposed to additional health risks from the disease. ACOG has warned that “pregnant women are known to be at greater risk of severe morbidity and mortality from other respiratory infections such as influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population for COVID-19.”17
31. The window during which a patient can obtain an abortion in Ohio is limited. Pregnancy is generally forty weeks in duration, but Ohio prohibits abortion after twenty-two LMP.18 See Ohio Rev. Code § 2919.201.19
32. Although abortion is a very safe medical procedure, the health risks associated with it increase with gestational age.20 As ACOG and other well-respected medical professional organizations have observed, abortion “is an essential component of comprehensive health care”
16 M. Antonia Biggs et al., Understanding Why Women Seek Abortions in the US, 13 BMC Women’s Health 7 (2013).
17 Am. Coll. of Obstetricians & Gynecologists, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (last updated Mar. 13, 2020), https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/ novel-coronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (last updated Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/pregnant-women-faq.html.
18 In fact, Ohio prohibits abortion after approximately six weeks, but the Court has preliminarily enjoined that ban. See Ohio Rev. Code § 2919.195.
19 This provision prohibits an abortion “when the probable post-fertilization age of the unborn child is twenty weeks or greater.” Id. “Post-fertilization age” means “the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum,” id. § 2919.20(E), which is two weeks before a patient’s last menstrual period. Thus, twenty weeks post-fertilization age is twenty-two weeks LMP.
20 Nat’l Acads., supra note 7, at 77–78, 162–63.
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and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”21
33. Patients generally seek abortion as soon as they are able, but many face logistical obstacles that can delay access to abortion care. Patients will need to schedule an appointment, gather the resources to pay for the abortion and related costs,22 and arrange transportation to a clinic, time off of work (often unpaid, due to a lack of paid time off or sick leave), and possibly childcare during appointments.23 Ohio law requires most patients to make these arrangements multiple times even though they could just as safely obtain care in one visit. Ohio Rev. Code § 2919.193, .194 (requiring the physician to determine whether there is a detectable fetal heartbeat, which is done by ultrasound, and if there is a detectable heartbeat, prohibiting an abortion for at least twenty-four hours). Delay results in higher financial and emotional costs to the patient. Minor patients, unless emancipated, must also obtain written consent from a parent or a judicial order before they can receive care. Ohio Rev. Code § 2919.12.
34. The COVID-19 pandemic has only exacerbated these burdens on patients seeking abortion care. It has limited public transit availability, caused layoffs and other work disruptions, shuttered schools and childcare facilities, and otherwise limited patients’ options for transportation
21 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak.
22 Ohio prohibits public insurance, including Medicaid, and insurance purchased on the state health exchange from covering abortion services except in the very limited circumstances where a patient’s physical health or life is at risk, or where the pregnancy is a result of rape or incest that has been reported to law enforcement. Ohio Rev. Code §§ 9.04, 3901.87; Ohio Admin. Code § 5160-17-01.
23 Jerman et al., supra note 14; Sarah E. Baum et al., Women’s Experience Obtaining Abortion Care in Texas After Implementation of Restrictive Abortion Laws: A Qualitative Study, 11 PLoS One 1, 7–8, 11 (2016); Lawrence B. Finer, Lori F. Frohwirth, Lindsay A. Dauphinee, Susheela Singh, & Ann M. Moore, Timing of Steps and Reasons for Delays in Obtaining Abortions in the United States, 74 Contraception 334, 335 (2006).
12

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 13 of 43 PAGEID #: 779
and childcare support during a time of recommended social-distancing.24 Indeed, jobless claims are soaring due to the virus.25
35. PPSWO does not use or have in supply N-95 masks, the PPE that appears to be in
shortest supply in battling the COVID-19 pandemic in Ohio and around the country. PPSWO uses
disposable gowns, which again I understand to be the gowns subject to shortages at this time, only
in dealing with patients who present with upper respiratory symptoms consistent with COVID-19
infection. In addition, disposable gowns are used during end-of-the day cleaning.
36. In order to reduce the use of PPE, the number of staff in the operating room is
reduced to the surgeon and one assistant. PPSWO has eliminated all non-essential persons in all
centers including volunteers, trainees, and doulas. PPSWO does not provide inpatient care, nor is
it set up to do so.
37. Patients who are prevented from obtaining abortion care will still need medical care
to maintain their health and well-being. Since pregnant patients will remain users of the healthcare
system as long as they are pregnant, banning surgical abortion will result in minimal, if any,
conservation of PPE. By comparison, even if a provider of prenatal care reduces such care during
the COVID-19 outbreak, it will still involve use of masks, non-sterile gloves, and potentially other
24 ODH, Governor DeWine Announces School Closures (Mar. 12, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-can-use/governor-dewineannounces-school-closures; ODH, Governor DeWine Orders Ohio Bars & Restaurants to Close (Mar. 15, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-can-use/governor-dewineorders-ohio-bars-restaurants-to-close; ODH, Governor DeWine Announces Additional Temporary Business Closures (Mar. 18, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-canuse/governor-dewine-announces-additional-temporary-business-closures; Ohio Exec. Order 2020-04D; see also White House, The President’s Coronavirus Guidelines for America (Mar. 16, 2020), https://www.whitehouse.gov/wpcontent/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf; Rebecca Shabad, Fauci Predicts Americans Will Likely Need to Stay Home for at Least Several More Weeks, NBC News (Mar. 20, 2020) https://www.nbcnews.com/politics/donald-trump/fauci-predicts-americans-will-likely-need-stay-home-least-severaln1164701.
25 Scott Noll, As Ohio Unemployment Soars, Some People Are Missing Out on Benefits, News 5 Cleveland (Mar. 19, 2020), https://www.news5cleveland.com/news/local-news/as-ohio-unemployment-soars-some-people-aremissing-out-on-benefits.
13

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PPE during multiple visits.26 A patient continuing a pregnancy will thus likely require more PPE than a patient presenting for abortion.27 Furthermore, every time a pregnant patient presents to the hospital for evaluation prior to labor, which could happen multiple times, this will require the use of masks and sterile gloves. An actual birth could involve anywhere from seven to ten gowns, masks, and sterile gloves.
38. Since the COVID-19 outbreak, PPSWO has taken steps to preserve much-needed medical resources and help prevent the spread of COVID-19 in the communities where we offer services. PPSWO has been and continues to follow the CDC guidelines on PPE usage during the COVID-19 outbreak including: selectively cancelling elective and non-urgent procedures and appointments for which eye protection is typically used by staff; shifting eye protection usage from disposable to reprocessing devices such as face shields; implementing extended use of eye protection, facemasks and gowns.28
39. Even before the Director’s Order, for example, we had reduced our patient volume in family planning centers and are delaying very early gestation patients in the surgery center to minimize repeat visits and ensure that we comply with current social-distancing recommendations. We have also made dramatic changes to the flow of our patient care. Before patients may enter a health center, we screen them for COVID-19 symptoms, including by checking for fever. Only those individuals who are thoroughly screened can proceed to the front desk to check in and

26 ACOG, Examples of Alternate or Reduced Prenatal Care Schedules (Mar. 24, 2020), https://www.acog.org/en/Clinical%20Information/Physician%20FAQs/-/media/287cefdb936e4cd a99a683d3cd56dca1.ashx.

27 https://www.nytimes.com/2020/03/26/us/coronavirus-pregnancy-maternal-health-system.html (noting

that induced labor actually requires patients to spend more time in the hospital)

28

CDC guidelines can be found here: https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-

strategy/face-masks.html and https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/eye-protection.html.

PPSWO does vary from these guidelines when requested to. For example, the ODH inspectors requested PPE,

which was provided.

14

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 15 of 43 PAGEID #: 781
provide their phone number. Patients are then asked to wait in their cars, where a staff member will call them to do as much intake as possible by phone. Patients are only permitted to reenter the health center when a room has opened for them and a clinician is available to see them.
40. PPSWO could make further progress in preserving PPE (as well as reducing overall contagion risks during the pandemic) were it not for various the Ohio restrictions on abortion I mentioned above, including requirements forcing patients to make an extra, medically unnecessary trip to the health center; forcing patients to receive an ultrasound during that unnecessary trip; and restricting medication abortion to ten weeks LMP (even though it can safely be used up to eleven weeks LMP).
Irreparable Harm Caused by the Director’s Order 41. Without any clear guidance from the ODH, and in light of the statements of the Director, Governor, and Attorney General, as well as the actions of ODH, PPSWO and its physicians reasonably fear being immediately shut down and prosecuted.29 42. If the Director’s Order is enforced to prohibit nearly all surgical abortions, PPSWO will be forced to stop providing previability surgical abortions to patients. As a result, the Order would deprive PPSWO’s patients of the freedom to make a very personal and nuanced decision in consultation with their families and preferred doctors. It would harm patients’ physical, emotional, and financial wellbeing and the wellbeing of their families. 43. Moreover, even if some patients affected by the order are able to obtain an abortion after the order is lifted, they will have still suffered increased risks to their health caused
29 Although only PPSWO, WMCD, and Preterm have received letters and been inspected at this time, PPGOH and NEOWC are also subject to the Director’s Order, adopted policies identical to the ones in place at the clinics that received letters.
15

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by the mandated delay in access to abortion care. 30 Even if each one of these patients were able to access abortion after the Governor’s declared emergency ends (or the Director modifies or rescinds her order), many of the medication abortion patients would require surgical abortions instead (and correspondingly greater amounts of PPE), and some surgical abortion patients would require a comparatively more complicated surgical abortion method using the D&E technique. That technique requires more time in the clinic and a larger number of staff than aspiration abortion, another method of surgical abortion. Many will also face increased costs related to abortion, as abortion at later gestational points is more expensive and may require a two-day procedure, instead of one. These costs, in turn, will likely lead to additional delay and present an even greater hardship to vulnerable populations during the economic fallout of the COVID-19 pandemic. Moreover, because these patients would continue to be pregnant for a longer period of time, they would also be at increased risk of negative health outcomes if they are diagnosed with COVID-19.31 Other patients could be foreclosed from receiving an abortion altogether because the delay mandated by the order would extend their pregnancies beyond the legal gestational limit for abortion in Ohio.
44. Without access to PPSWO’s abortion services and those of other Ohio abortion providers, some patients will be forced to travel hundreds of miles across state lines to try to access abortion care. Given the logistical hurdles of traveling out-of-state, particularly during the COVID-19 pandemic, these patients are likely to obtain abortions later than they would have had they accessed care from PPSWO, which necessarily entails greater risks (and potentially more PPE) than an earlier procedure. Efforts to travel are also likely to expose both patients and other
30 Nat’l Acads., supra note 7, at 77–78, 162–63. 31 Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women, supra note 17.
16

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people to additional risk of contagion, and if they were able to obtain an abortion out of state, would end up using PPE in that out-of-state clinic.
45. For other patients, travel to another state will simply not be possible. As a result, these patients will be forced to carry unwanted pregnancies to term, resulting in a deprivation of their fundamental right to determine when and whether to have a child or to add to their existing families, as well as greater health and other risks to them and their children.
46. Defendants’ actions threaten to delay abortion care for patients seeking abortions because of health problems until they need emergency care, or forces those patients to attempt to travel to other states to obtain that care. Absent an order from this Court, PPSWO’s patients will be denied their right to access safe and legal previability abortion in Ohio, or be forced to carry pregnancies to term against their will.
47. PPSWO has 50 patients scheduled for surgical abortions in the week starting March 31, 2020.
I declare under penalty of perjury the foregoing is true and correct.
________________________________ Sharon Liner, M.D. Executed March 29, 2020
17

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EXHIBIT A

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 19 of 43 PAGEID #: 785
Sharon A. Liner
2314 Auburn Ave Cincinnati, OH 45219
sliner@ppswo.org 513-824-7866
Education:
Michigan State University, East Lansing, Michigan 48824. B.S. - Medical Technology, May 1997.
Michigan State University, College of Human Medicine, East Lansing, Michigan 48824 Doctor of Medicine, May 2001
University of Cincinnati, Family Medicine Residency, Cincinnati, Ohio 45211 - Family Medicine Board certified since 2004
Work Experience:
Laboratory Assistant, Vitamin A Research Laboratory, 229 G.M. Trout Bldg., Michigan State University, East Lansing, Michigan 48824 February 1995-May 1997.
Direct Care Worker, Harris Development Center, 1391 East Haslett Road, Williamston, MI, 48895 May 1997-January 1999.
Western Family Physicians, 2450 Kipling Ave Ste 108, Cincinnati, OH 45239. May 2004 to July 2004.
Women’s Medical Center, 3219 Jefferson Ave., Cincinnati, OH 45220 June 2009 to June 2010.
Planned Parenthood, 2314 Auburn Ave. Cincinnati, OH 45219 July 2004 to present. Medical Director of Surgical Services 2007-2018. Medical Director 2018-present.
Community Involvement:
Family Practice Clinic - Michigan State University May 1994-August 1994. Lansing Area AIDS Network Holiday Gift Project December 1995 and 1996. Michigan Capitol Medical Center Surgery Volunteer May 1995-August 1995. Family Practice Clinic – Lansing January 1996-May 1996. Cristo Rey Clinic – Lansing September 1997-12/97. Immunization Clinic - E. Lansing November 1998-5/99. Friendship Clinic - Lansing September 1997-5/99.
Exhibit A

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 20 of 43 PAGEID #: 786
Sharon Liner Page 2
Honors and Awards:
Outstanding Senior Award 1997. 1997 College of Human Medicine Health Professions Open Scholarship. 1999 Michael J. Ptasnik, MD and Family Scholarship. Chief Resident Family Practice 2003-2004. Family Medicine Residency OB Award 2004 Cincinnati Women’s Political Caucus Outstanding Achievement Honoree 2011 Planned Parenthood Southwest Ohio Region Employee of the Year Award 2015
Activities and Organizations:
Honduras Trip Clinic Team Leader 2002. American Academy of Family Physicians. August 1997-present. Sycamore Community Band. September 2007 – present.
Skills:
Typing and some computer skills. D & C/ D & E up to 22 weeks LMP IUD insertion and removal Implant insertion and removal Basic biopsy including endometrial Basic ultrasound for pregnancy dating and IUD placement ACLS certified

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 21 of 43 PAGEID #: 787
EXHIBIT B

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 22 of 43 PAGEID #: 788
Ohio Department of Health

Mike DeWine, Governor Jon Hustad, Lt. Governor

Amy Acton, M.D., MPH, Director

RE: Director's Order for the Management of Non-essential Surgeries and Procedures throughout Ohio
I, Amy Acton, MD, MPH, Director of the Ohio Department ofHealth (ODH), pursuant to the authority granted to me in R.C. 3701.13 to 'make special orders...for preventing the spread of contagious or infectious diseases" and for the purposes ofpreserving personal protective equipment (PPE) and critical hospital capacity and resources within Ohio, ORDER the following:
1. Effective 5:00p.m. Wednesday March 18,2020, all non-essential or elective surgeries and procedures that utilized PPE should not be conducted.
2. A non-essential surgery is a procedure that can be delayed without undue risk to the current or future health ofa patient. Examples of criteria to consider include:
a. Threat to the patient's life if surgery or procedure is not performed;
b. Threat ofpermanent dysfunction of an extremity or organ system; c. Risk ofmetastasis or progression of staging; or d. Risk ofrapidly worsening to severe symptoms (time sensitive)
3. Eliminate non-essential individuals from surgery/procedure rooms and patient care areas to preserve PPE. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required.
4. Each hospital and outpatient surgery or procedure provider, whether public, private, or nonprofit, shall establish an internal governance structure to ensure the principles outlined above are followed.
5. This action is taken to protect our healthcare workforce during this unprecedented event. This Order shall remain in full force and effect until the State of Emergency declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescitids or modifies this Order.
This Order take into consideration and is consistent with the Ohio Hospital Association's Implementing Guidelines for the Management ofNon-Essential Surgeries and Procedures Throughout Ohio dated March 16,2020.
COVID-19 is a respiratory disease that can result in serious illness or death, is caused by the SARS-CoV2 virus, which is a new strain of coronavirus that had not been previously identified in humans and can easily spread from person to person. The virus is spread between individuals who are in close contact with each other (within about six feet) through respiratory droplets produced when an infected person

246 North High Street Columbus, Ohio 43215 U.S.A.

6141466-3543 www.odh.ohio.gov

The State of Ohio is an Equal Opportunity Employer and Provider of ADA Services.

Exhibit B

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 23 of 43 PAGEID #: 789
coughs or sneezes. It may be possible that individuals can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose or eyes.
On January 23,2020, the Ohio Department of Health issued a Director's Journal Entry making COVID19 a Class A reportable disease in Ohio.
On January 28, 2020, the Ohio Department of Health hosted the first statewide call with local health departments and healthcare providers regarding COVID-19.
On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization declared the outbreak of COVID-19 a public health emergency ofinternational concern.
On January 31,2020, Health and Human Services Secretary, Alex M. Azar II, declared a public health emergency for the United States to aid the nation's healthcare community in responding to COVID-19.
On February 1, 2020, the Ohio Department of Health issued a statewide Health Alert Network to provide local health departments and healthcare providers with updated guidance for COVID-19 and revised Person Under Investigation (PUI) criteria.
On February 3, 2020, the Ohio Department of Health trained over 140 personnel to staff a call center for COVID-19, in the event it was needed.
On February 5, 2020, the Ohio Department of Health began updating and notifying the media of the number ofPills in Ohio every Tuesday and Thursday.
On February 6, 2020, the Ohio Department of Health updated all agency assistant directors and chiefs of staffon COVID-19 preparedness and status during the Governor's cabinet meeting.
On February 7, 2020, the Ohio Department ofHealth and the Ohio Emergency Management Agency met to conduct advance planning for COVID-19.
On February 13, 2020, the Ohio Department of Health conducted a Pandemic Tabletop Exercise with State agencies to review responsive actions should there be a pandemic in Ohio.
On February 14, 2020, the Ohio Department of Health held a conference call with health professionals across the state. The purpose of the call was to inform and engage the healthcare community in Ohio. Presentations were provided by the Department ofHealth, Hamilton County Public Health, and the Ohio State University.
On February 27, 2020, the Ohio Department of Health and the Ohio Emergency Management Agency briefed the directors ofState agencies during the Governor's cabinet meeting regarding preparedness and the potential activation ofthe Emergency Operations Center.
On February 28, 2020, the "Governor DeWine, Health Director Update COVID-19 Prevention and Preparedness Plan" was sent to a broad range of associations representing healthcare, dental, long-term

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 24 of 43 PAGEID #: 790

care, K-12 schools, colleges and universities, business, public transit, faith-based organizations, non-profit

On March 2, 2020, the Ohio Department of Heruth activated a Joint Information Center to coordinate COVID-19 communications.

On March 5, 2020, the Ohio Department of Heruth hosted the Governor's Summit on COVID-19 Preparedness, a meeting with the Governor, cabinet agency directors, locru heruth department commissioners, and their staff.

On March 6, 2020, the Ohio Department of Heruth opened a crul center to answer questions from the public regarding COVID-19.

On March 9, 2020, testing by the Department ofHeruth confirmed that three (3)

were positive for

COVID-19 in the State of Ohio. This confirms the presence of a potentiruly dangerous condition which

may affect the heruth, safety and welfare of citizens of Ohio.

On March 9, 2020, the Ohio Emergency Management Agency activated the Emergency Operations Center.

On March 9, 2020, the Governor Declared a State of Emergency in Executive Order 2020-01D.

On March 11, 2020, the head of the World Heruth Organization declared COVID-19 a pandemic.

On March 11, 2020, testing by the Ohio Department of Heruth confirmed that one (1) more patient was positive for COVID-19 in the State of Ohio.

On March 11, 2020, the Ohio

ofHeruth and Veterans Services issued a Joint Directors' Order

to limit access to Ohio nursing homes and similar facilities.

On March 15, 2020, the Ohio Department of Heruth issued a Director's Order to limit access to Ohio's jails and detention facilities.

On March 15, 2020, the Ohio Department ofHeruth issued a Director's Order to limit the sale offood and beverages, liquor, beer and wine to carry-out and delivery only.

On March 15,2020, the CDC issued Interim Guidance for mass gatherings or large community events,

stating that such

that consist of 50 or more people should be cancelled or postponed.

On March 15,2020, the Ohio Department ofHeruth issued a Director's Order closing polling stations.

Multiple areas ofthe United States are experiencing "community spread" ofthe virus that causes COVID19. Community spread, defined as the transmission of an illness for which the source is unknown, means that isolation ofknown areas ofinfection is no longer enough to control spread.

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 25 of 43 PAGEID #: 791

The CDC reports that people are most contagious when they are most symptomatic (the sickest) however some spread might be possible before people show symptoms although that is not the main way the virus spreads.

Mass gatherings (50 or more persons) increase the risk of community transmission of the virus COVID19.

Accordingly, upon guidance from the U.S. Surgeon General, American College ofSurgeons and numerous other public health experts, I hereby ORDER, beginning at 5:00p.m. Wednesday, March 18, 2020 all non-essential surgeries and procedures are cancelled. A non-essential surgery is a procedure that can be delayed without undue risk to the current or future health of a patient. Examples of criteria to consider include: threat to the patient's life if surgery or procedure is not performed; Threat of permanent dysfunction ofan extremity or organ system; risk ofmetastasis or progression ofstaging; or risk ofrapidly worsening to severe symptoms (time sensitive). Eliminate non-essential individuals from surgery/procedure rooms and patient care areas to preserve PPE. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required. Each hospital and outpatient surgery or procedure provider shall establish an internal governance structure to ensure the principles outlined above are followed. The Order is issued for the purposes of preserving personal protective equipment (PPE) and critical hospital capacity and resources within Ohio. This action is taken to protect our healthcare workforce during this unprecedented event. This der shall remain in full force and effect until the State ofEmergency declared by the Governor no

lo ger e isf \

r: :

Department ofHealth rescinds or modifies this Order.

Y
Am '1\ct n, MD, MPH Director Health

March17, 2020

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 26 of 43 PAGEID #: 792
EXHIBIT C

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 27 of 43 PAGEID #: 793
PLANNED PARENTHOOD SOUTHWEST OHIO REGION POLICY IMPLEMENTING OHIO DEPARTMENT OF HEALTH’S MARCH 17, 2020, ORDER FOR THE MANAGEMENT OF NON-ESSENTIAL SURGERIES AND PROCEDURES
THROUGHOUT OHIO
The Director of the Ohio Department of Health issued an Order for the Management of nonessential Surgeries and Procedures throughout Ohio (“Order”) (see attached Order). ODH has ordered all non-essential or elective surgeries and procedures that utilize personal protective equipment (“PPE”) to cease at 5:00 p.m. on March 18, 2020 “for the purpose of preventing the spread of contagious and infectious diseases and of preserving PPE and critical hospital capacity and resources in Ohio.” Planned Parenthood Southwest Ohio Region (“PPSWO”) hereby establishes this policy in order to ensure compliance with ODH’s Order.
1. No non-essential surgeries and procedures that utilize PPE will be performed.
2. PPSWO physicians will determine on a case-by-case basis whether a surgical abortion or procedure constitutes an essential surgery or procedure that may continue to be provided under the terms of the Order. PPSWO physicians shall rely on the Director’s Order and should consider the following considerations for making this decision:
a. The Order states that a surgery is essential if it cannot “be delayed without undue risk to the current or future health of a patient” and includes, as examples of criteria to consider, the risk to the patient of rapidly worsening to severe symptoms that make the surgery time sensitive, as well as a progression of staging.
b. Pregnancy has a duration of approximately forty weeks as measured from the first day of the woman’s last menstrual period (LMP) and abortions are banned in Ohio beginning at 22 weeks LMP. Ohio Rev. Code § 2919.201. In addition, while abortion is an extremely safe medical procedure, delay increases the risk to the health of the patient. See, e.g., Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States at 77-78, 162-63 (2018).
c. The Joint Statement by the American College of Obstetricians and Gynecologists (ACOG), the American Board of Obstetrics & Gynecology, et al., on Abortion Access During the COVID-19 Outbreak, issued March 18, 2020, which states that to “the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”
CREATED: MAR 2020 REVIEWED/REVISED: MAR 21, 2020
IMPLEMENTED: MAR 2020
Q:\Operations Ma1nual - PPSWO\Health Center\ASF Procedures During an Outbreak
Exhibit C

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 28 of 43 PAGEID #: 794

d. The Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” issued March 18, 2020, which states that consideration of whether delay of a surgery is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”
3. All essential surgeries and procedures that are performed by PPSWO while the Order is in effect will proceed as follows:
a. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required.
b. Every effort will be made to preserve PPE.
4. This policy, like the underlying Order, shall remain in effect until the State of Emergency declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescinds or modifies the Order.

Medical Director

Approved by Governing Body: Date implemented: Date Revised:

March 18, 2020 March 18, 2020 March 21, 2020

CREATED: MAR 2020 REVIEWED/REVISED: MAR 21, 2020
IMPLEMENTED: MAR 2020
Q:\Operations Ma2nual - PPSWO\Health Center\ASF Procedures During an Outbreak

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 29 of 43 PAGEID #: 795
CREATED: MAR 2020 REVIEWED/REVISED: MAR 21, 2020
IMPLEMENTED: MAR 2020
Q:\Operations Ma3nual - PPSWO\Health Center\ASF Procedures During an Outbreak

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 30 of 43 PAGEID #: 796
CREATED: MAR 2020 REVIEWED/REVISED: MAR 21, 2020
IMPLEMENTED: MAR 2020
Q:\Operations Ma4nual - PPSWO\Health Center\ASF Procedures During an Outbreak

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 31 of 43 PAGEID #: 797
CREATED: MAR 2020 REVIEWED/REVISED: MAR 21, 2020
IMPLEMENTED: MAR 2020
Q:\Operations Ma5nual - PPSWO\Health Center\ASF Procedures During an Outbreak

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 32 of 43 PAGEID #: 798
CREATED: MAR 2020 REVIEWED/REVISED: MAR 21, 2020
IMPLEMENTED: MAR 2020
Q:\Operations Ma6nual - PPSWO\Health Center\ASF Procedures During an Outbreak

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 33 of 43 PAGEID #: 799
PPSWO’S POLICY IMPLEMENTING OHIO DEPARTMENT OF HEALTH’S MARCH 17, 2020, ORDER FOR THE MANAGEMENT OF NON-ESSENTIAL SURGERIES AND
PROCEDURES THROUGHOUT OHIO
The Director of the Ohio Department of Health issued an Order for the Management of nonessential Surgeries and Procedures throughout Ohio (“Order”). ODH has ordered all non-essential or elective surgeries and procedures that utilize personal protective equipment (“PPE”) to cease at 5:00 p.m. on March 18, 2020 “for the purpose of preventing the spread of contagious and infectious diseases and of preserving PPE and critical hospital capacity and resources in Ohio.” PPSWO hereby establishes this policy in order to ensure compliance with ODH’s Order.
As of March 18, 2020, at 5:00 p.m., the following policies and procedures will become effective:
1. No non-essential surgeries and procedures that utilize PPE will be performed.
2. Since a delay in a surgical abortion will negatively affect patient health and safety, PPSWO has determined that surgical abortion constitutes an essential surgery and may continue to be provided under the terms of the Order. PPSWO relies on the following considerations for making this decision:
a. The Order states that a surgery is essential if it cannot “be delayed without undue risk to the current or future health of a patient” and includes, as examples of criteria to consider, the risk to the patient of rapidly worsening to severe symptoms that make the surgery time sensitive, as well as a progression of staging. Pregnancy has a duration of approximately forty weeks as measured from the first day of the woman’s last menstrual period (LMP) and abortions are banned in Ohio beginning at 22 weeks LMP. Ohio Rev. Code § 2919.201. Thus, the timeframe for a patient to obtain an abortion is limited. In addition, while abortion is an extremely safe medical procedure, it is time-sensitive, because it cannot be delayed without increasing the risk to the health of the patient. See, e.g., Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States at 77-78, 162-63 (2018).
b. The recommendation of our Ambulatory Surgical Facility’s Governing Body, which has determined that surgical abortions are essential surgical procedures.
c. The Joint Statement by the American College of Obstetricians and Gynecologists (ACOG), the American Board of Obstetrics & Gynecology, et al., on Abortion Access During the COVID-19 Outbreak, issued March 18, 2020, which states that to “the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay
1

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of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”
d. The Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” issued March 18, 2020, which states that consideration of whether delay of a surgery is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”
3. All surgeries and essential procedures that are performed by PPSWO while the Order is in effect will proceed as follows:
a. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required.
b. Every effort will be made to preserve PPE.
4. This policy, like the underlying Order, shall remain in effect until the State of Emergency declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescinds or modifies the Order.

________________________________________ Medical Director

Approved by Governing Body: Date implemented:

March 18, 2020 March 18, 2020

2

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EXHIBIT D

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 36 of 43 PAGEID #: 802
SGO
Joint Statement on Elective Surgeries
March 16, 2020 - The American College of Obstetricians and Gynecologists joins the American Association of Gynecologic Laparoscopists, American Society for Reproductive Medicine, the American Urogynecologic Society, the Society of Family Planning, the Society of Gynecologic Surgeons, the Society for Maternal-Fetal Medicine, and the Society of Gynecologic Oncology in providing the following recommendations for obstetrician-gynecologists regarding the American College of Surgeons’ statement on elective surgery and the U.S. Surgeon General’s recommendation that hospitals suspend elective surgeries during the COVID-19 pandemic.
The COVID-19 pandemic is a public health crisis that requires the full attention and resources of our health care systems. The pandemic is and will create stress and pressure on health care systems throughout the country, especially in under-resourced areas. As hospital systems, clinics, and communities prepare to meet anticipated increases in demand for the care of people with COVID-19, strategies to mitigate spread of the virus and to maximize health care resources are evolving. Some health systems, at the guidance of the U.S. Centers for Disease Prevention and Control, are implementing plans to cancel elective and non-urgent procedures to expand hospitals’ capacity to provide critical care.
While elective surgery can serve important roles in furthering patient wellbeing, we endorse the Surgeon General’s statement regarding elective surgery. Surgical procedures performed by obstetriciangynecologists are generally medically indicated procedures necessary for the furtherance of patient health and safety. In areas where COVID-19 is particularly prevalent or where there is particular stress on the health care system, it may be advantageous to identify and modify surgical scheduling, including for procedures that are medically indicated, when a patient’s health and safety would not be harmed by such delay. Decisions should be made on a local-regional level, considering the risks and resources specific to each area.
Obstetric and gynecologic procedures for which a delay will negatively affect patient health and safety should not be delayed. This includes gynecologic procedures and procedures related to pregnancy for which delay would harm patient health. Obstetrician-gynecologists and other health care practitioners should be aware of the unintended impact that policies responding to COVID-19 may have, including limiting access to time-sensitive obstetric and gynecological procedures.
This is an unusual time with rapidly evolving circumstances, and we would expect recommendations to change. We encourage individual physicians to work closely with their hospital systems to ensure that patient’s needs are being met and that time-sensitive procedures are not rendered inaccessible. Please consult the CDC’s Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States.
Exhibit D

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EXHIBIT E

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 38 of 43 PAGEID #: 804

q ASCA COVID-19 Resources: Learn More

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COVID-19: Guidance for ASCs on Necessary Surgeries
Updated March 19, 2020
In response to government guidance that hospitals and ambulatory surgery centers postpone elective surgeries during the COVID-19 pandemic, the Ambulatory Surgery Center Association (ASCA) has consulted with clinical leaders to solicit recommendations on how and when facilities should proceed with cases that, for clinical reasons, should not be postponed. A surgery may be deemed urgent and necessary if the treating physician decides that a months-long delay would increase the likelihood of significantly worse morbidity or prognosis for the patient.
First and foremost, if a procedure can be safely postponed without additional significant risk to the patient, it should be delayed until after the pandemic. The current and ongoing efforts to isolate our population and create social distancing are essential steps in saving lives by shortening and ultimately ending the COVID-19 pandemic. The health and safety of patients, along with preventing the spread of COVID-19, must be our highest priority. We concur with the American College of Surgeons that “the risk to the patient should include an aggregate assessment of the real risk of proceeding and the real risk of delay, including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”
Physicians should engage with patients and families to make care decisions that minimize potential risks to patients while ensuring they receive necessary care that cannot be safely delayed. Physicians should consider the potential of post-surgical complications that could place stress on the local hospital that may lack capacity for transfers. To that end, facilities should reach out to local hospitals to establish a line of communication that ensures coordination in managing care during the pandemic.
In addition, ASCs should develop explicit controls on how to manage the infection risks of all non-patient visitors (patient caregivers, vendors, contractors, etc.) who present themselves inside the facility and should strictly prohibit all non-essential visitors. Additional social distancing policies should be employed.
Examples of cases that might still need to proceed with surgery at this time include:
Acute infection Acute trauma that would significantly worsen without surgery Potential malignancy Uncontrollable pain that would otherwise require a hospital admission A condition where prognosis would significantly worsen with a delay in treatment
Also, ambulatory surgery centers need to be prepared for the possibility that the pandemic may proceed to a point that strains the system such that hospitals will need to shift necessary surgeries to ASCs and/or ASCs and their resources will be required to serve the communities and the healthcare system in a different capacity. Additional guidance from regulatory agencies would govern those situations.
Finally, facilities need to recognize that the pandemic and its impact could create situations when ASCs may need to temporarily suspend services, such as:
When a patient, staff or physician who has been in the ASC is suspected or subsequently diagnosed with COVID-19 When there is a significant shortage of PPE (masks, gowns, gloves, etc.) that prevents safe practice of surgical cases
Clearly, this is an evolving situation and the coming days and weeks will present different challenges for healthcare facilities, such as ASCs, to grapple with as the COVID-19 pandemic runs its course. As they occur, the ambulatory surgery community will continue to work with federal, state and local health policy leaders to protect and preserve the health of the public during this crisis.
Exhibit E

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 39 of 43 PAGEID #: 805

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EXHIBIT F

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Administration Office 614-644-8901

March 20, 2020

Planned Parenthood of Southwest Ohio Cincinnati Surgery Center 2314 Auburn Ave. Cincinnati, OH 43219

Via Email - sbertuleit@ppswo.org

Re: March 17, 2020, Ohio Dept. of Health Order

Dear Planned Parenthood of Southwest Ohio,

On March 17, 2020, the Ohio Department of Health issued an order pursuant to the Department’s powers under R.C. 3701.13. That order (attached) cancelled all non-essential or elective surgeries and procedures utilizing personal protective equipment (“PPE”) as of 5:00 p.m. on March 18, 2020. The order was issued, in part, to preserve PPE for health care providers who are battling the COVID-19 pandemic that is spreading in our state and also to preserve critical hospital capacity and resources.

The Ohio Department of Health has received a complaint that your facility has been performing or continues to offer to perform surgical abortions, which necessarily involve the use of PPE. On behalf of the Department, you and your facility are ordered to immediately stop performing non-essential and elective surgical abortions. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient. The Department of Health has outlined criteria to consider when determining whether a procedure is essential (see attached order). If you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the attached order, the Department of Health will take all appropriate measures.

This is an unprecedented time in the state’s history and everyone must do their part to help stop the spread of this disease. We look forward to receiving your confirmation that you and your facility are complying with the attached order. You may contact me by email at jonathan.fulkerson@ohioattorneygeneral.gov

Sincerely, /s/ Jonathan Fulkerson

Jonathan Fulkerson Deputy Attorney General

Exhibit F

30 East Broad Street, 17th Floor | Columbus, Ohio | 43215 www.OhioAttorneyGeneral.gov

Case: 1:19-cv-00360-MRB Doc #: 42-1 Filed: 03/30/20 Page: 42 of 43 PAGEID #: 808
EXHIBIT G

FORMS PUBLICATIONS CFAaQse: 1M:1ED9I-Acv-0C0O36N0TA-MCRT B Doc #: 42-1 Filed: 03/30/20 Page: 43 of 43 PAGEID #: 809
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Media > News Releases > March 2020 > Statement from AG Yost regarding Enforcement of Ohio Department of Health’s Order to Preserve Person
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Statement from AG Yost regarding Enforcement of Ohio Department of Health’s Order to Preserve Personal Protective Equipment During a Pandemic Emergency
3/25/2020

(COLUMBUS, Ohio) — The following statement may be attributed to Ohio Attorney General Dave Yost:
“Establishing roles in a crisis is critical. In the current COVID-19 crisis, the Attorney General’s ofﬁce plays a speciﬁc role. We are the prosecutor and the Ohio Department of Health is the police ofﬁcer. My ofﬁce will take quick enforcement action once an investigation is completed by the Department of Health, when facts to support a violation are determined, and a case is forwarded to my ofﬁce. That is the standard protocol.
In Ohio, the Attorney General’s ofﬁce lacks the extensive and explicit investigatory authority to independently take action with regard to this order. That authority lies with the Department of Health as the regulatory agency under Ohio Rev. Code 3701.04 and Ohio Admin. Code 3701-83-06. If the Department of Health determines through an investigation that Dr. Acton’s order was violated by any surgical facility in Ohio, my ofﬁce stands ready to play our role and pursue legal action on behalf of the Ohio Department of Health.
Complaints regarding possible violations of Dr. Acton’s order should be ﬁled with the Ohio Department of Health, as the department serves as the investigatory arm. In this instance, the attorney general plays the role of the prosecutor, not the cop.”
MEDIA CONTACT: Bethany McCorkle: 614-466-1339
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Case: 1:19-cv-00360-MRB Doc #: 42-2 Filed: 03/30/20 Page: 1 of 14 PAGEID #: 810

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO

PRETERM-CLEVELAND, INC., et al., Plaintiffs,
v. DAVID YOST, et al.,
Defendants.

:

:

:

Case No. 1:19-cv-00360

:

:

:

Judge Barrett

:

:

DECLARATION OF CHRISSE FRANCE IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Chrisse France declares as follows: 1.   I am the Executive Director of Preterm-Cleveland (“Preterm”), a nonprofit corporation organized under the laws of the State of Ohio, which is a plaintiff in this case. I have held this position since 1999. 2.   As Executive Director, I am ultimately responsible for Preterm’s administrative, financial, and clinical operations. Thus, I am responsible for developing and implementing Preterm’s policies and procedures. 3.   I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Defendants from applying the Ohio Department of Health (“ODH”) Director’s March 17, 2020, order—barring all “nonessential” surgeries and medical procedures in Ohio during the COVID-19 outbreak—to ban most surgical abortions indefinitely. 4.   The facts I state here are based on my experience, my review of Preterm’s business records, information obtained in the course of my duties at Preterm, and personal knowledge that

Case: 1:19-cv-00360-MRB Doc #: 42-2 Filed: 03/30/20 Page: 2 of 14 PAGEID #: 811
I have acquired through my service at Preterm. If called and sworn as a witness, I could and would testify competently thereto. Preterm’s Provision of Abortion Care
5.   Preterm performs medication abortion through 70 days (or 10 weeks) of pregnancy, as measured from the first day of a patient’s last menstrual period (“LMP”), and surgical abortion through 21 weeks and 6 days LMP.
6.   Preterm performed 4,592 total abortions in 2019, 1,470 of which were after 10 weeks LMP. So far this year, it has performed 839 total abortions through February 29, 2020, 253 of which were after 10 weeks LMP.
7.   Preterm operates a facility licensed as an ambulatory surgical facility (“ASF”) under Ohio law. See Ohio Rev. Code § 3703.30. It is located in Cleveland, Ohio. All abortions performed by Preterm take place in this facility.
8.   Surgical abortions require minimal PPE. Preterm clinicians use surgical masks, reusable protective eyewear, gloves, and hair and shoe coverings during surgical abortions. Preterm does not use, and does not have in supply, any N95 masks. Preterm does not use or possess any sterile gloves or disposable protective eyewear. Only a small number of workers are physically present for these procedures or their preparation/recovery and therefore in need of PPE.
9.   For an ultrasound or laboratory exam, including one that accompanies abortion, our providers currently use non-sterile gloves. Preterm’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
10.   Preterm is committed to doing its part to reduce the spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
2

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11.   Since the COVID-19 outbreak, in addition to complying with the Director’s Order, Preterm has taken extensive steps to preserve much-needed medical resources that are in short supply during the pandemic and help prevent the spread of COVID-19 in the communities where we offer services. In addition, although in normal times we welcome support people accompanying abortion patients, we have decided not to allow such companions (except those accompanying minors) to enter our health centers in order to reduce the number of overall people exposed to one another.
12.   We have also made changes to the flow of patient care. Before patients may enter a health center, we screen them for COVID-19 symptoms, including by checking for fever.1 Only those individuals whose screen is negative can proceed to the front desk to check in and provide their phone number. If patients answer yes to any screening questions, they are referred to their primary care provider or the Ohio Department of Health Hotline at 833-4-ASKODH before they can schedule their appointment. We have reconfigured our waiting areas to allow for social distancing, and where there is inadequate space, patients are asked to wait in their cars. Patients are only permitted to reenter the health center when a room has opened for them and a clinician is available to see them.
13.   After receiving the Director’s Order, Preterm promptly adopted a policy to implement it and began to comply with it. A true and correct copy of Preterm’s first policy is attached as Exhibit A.
14.   On March 21, 2020, Preterm received a letter via email from the Ohio Attorney General, stating “[o]n behalf of the Department, you and your facility are ordered to immediately stop performing non-essential and elective surgical abortions.” The letter also cautions that “[i]f
1 Similarly, all staff are screened daily for symptoms.
3

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you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the attached order, the Department of Health will take all appropriate measures.” A true and correct copy of the Attorney General’s Letter is attached as Exhibit B.
15.   After receiving the Attorney General’s Letter, Preterm revised its policy to make clear that our “physicians will determine on a case-by-case basis whether a surgical abortion or procedure constitutes an essential surgery or procedure that may continue to be provided under the terms of the Order.” Our “physicians shall rely on the Director’s Order” to make that case-by-case determination. When a patient is eligible for both surgical and medication abortion, patients are provided a medication abortion, unless surgical abortion is the more appropriate method. Medication abortion uses less PPE than surgical abortion; indeed, the process of handing patients a pill requires no PPE. A true and correct copy of Preterm’s revised policy is attached as Exhibit C. The amended policy did not change the care we were providing under the Director’s Order.
16.   Preterm could make further progress in preserving PPE (as well as reducing overall contagion risks during the pandemic) were it not for various Ohio restrictions on abortion—such as Ohio’s requirements that force patients to make an extra, medically unnecessary trip to the health center, force patients to receive an ultrasound during that unnecessary trip, restrict medication abortion to ten weeks LMP (even though it can safely be used up to eleven weeks LMP).
17.   On March 26, 2020, two ODH inspectors arrived at Preterm for an unannounced inspection of a complaint, seeking information regarding Preterm’s compliance with the Director’s Order. Preterm fully cooperated with the inspection. Although the ODH inspectors
4

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would not tell us the source of the complaint, reporting suggests they came from anti-abortion activists.2
18.   While the first day of the inspection was still ongoing, Governor DeWine announced in a press conference that an essential abortion would be one that protected the life of the pregnant patient.3 At the same conference, Director Acton said that ODH had “listened to the AG” and began to investigate “violations [of the Order] across the state,” including at abortion clinics.
19.   That same day, Attorney General Yost issued a press release vowing to “take quick enforcement action” once ODH’s investigation was completed.
20.   The two inspectors returned on March 27, 2020 to continue their investigation. After two days of inspections, the inspectors left without telling Preterm whether or not they had found violations of the Director’s Order or any other regulation. This was a break with established ODH practice and procedure of informing Preterm of the inspection results before leaving. The inspectors said their superiors would make that determination at an unspecified later date and ODH would notify Preterm of the findings. Harms Caused by the Director’s Order and ODH’s Threat of Enforcement
21.   Based on the statements made by the ODH Director, the Governor, and the Attorney General, as well as the lack of clear guidance from ODH, regarding enforcement of the Director’s Order, Preterm reasonably fears that Defendants will “take all appropriate measures” against abortion providers.
2 https://www.fox19.com/2020/03/23/ohio-abortion-providers-ordered-stop-amid-covid-outbreak/; https://myemail.constantcontact.com/Ohio-s-AG-Yost-s-Cease-and-Desist-Orders-ignored-by-Preterm-afterenforcement-fails-.html?soid=1102276802798&aid=_zex7OI3QCU
3 https://www.ideastream.org/gov-mike-dewine-coronavirus-update-march-26-2020 Starting at 54:00.
5

Case: 1:19-cv-00360-MRB Doc #: 42-2 Filed: 03/30/20 Page: 6 of 14 PAGEID #: 815 22.   Without additional guidance from the ODH and in light of the statements of the
Governor and Attorney General, I am concerned that Preterm could lose its license, and our physicians credibly fear being prosecuted if we continue to provide surgical abortions, which means some of our patients will have later abortions or be denied an abortion entirely.
23.   Preterm has approximately 28 patients already scheduled for surgical abortions in the coming week at both of its health centers.
Executed this 30th day of March, 2020. _/s/ Chrisse France______________________ Chrisse France
6

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EXHIBIT A

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EXHIBIT B

Case: 1:19-cv-00360-MRB Doc #: 42-2 Filed: 03/30/20 Page: 11 of 14 PAGEID #: 820
Administration Office 614-644-8901
March 21, 2020
Preterm 12000 Shaker Boulevard Cleveland, OH 44120
Via Email - info@preterm.org
Re: March 17, 2020, Ohio Dept. of Health Order
Dear Preterm,
On March 17, 2020, the Ohio Department of Health issued an order pursuant to the Department’s powers under R.C. 3701.13. That order (attached) cancelled all non-essential or elective surgeries and procedures utilizing personal protective equipment (“PPE”) as of 5:00 p.m. on March 18, 2020. The order was issued, in part, to preserve PPE for health care providers who are battling the COVID-19 pandemic that is spreading in our state and also to preserve critical hospital capacity and resources.
The Ohio Department of Health has received a complaint that your facility has been performing or continues to offer to perform surgical abortions, which necessarily involve the use of PPE. On behalf of the Department, you and your facility are ordered to immediately stop performing non-essential and elective surgical abortions. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient. The Department of Health has outlined criteria to consider when determining whether a procedure is essential (see attached order). If you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the attached order, the Department of Health will take all appropriate measures.
This is an unprecedented time in the state’s history and everyone must do their part to help stop the spread of this disease. We look forward to receiving your confirmation that you and your facility are complying with the attached order. You may contact me by email at jonathan.fulkerson@ohioattorneygeneral.gov
Sincerely,
/s/ Jonathan Fulkerson
Jonathan Fulkerson Deputy Attorney General
30 East Broad Street, 17th Floor | Columbus, Ohio | 43215 www.OhioAttorneyGeneral.gov

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EXHIBIT C

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Case: 1:19-cv-00360-MRB Doc #: 42-3 Filed: 03/30/20 Page: 1 of 11 PAGEID #: 824

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO

PRETERM-CLEVELAND, INC., et al., Plaintiffs,
v. DAVID YOST, et al.,
Defendants.

:

:

:

Case No. 1:19-cv-00360

:

:

:

Judge Barrett

:

:

DECLARATION OF ADARSH KRISHEN, M.D., M.M.M., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Adarsh Krishen, M.D., M.M.M., declares as follows: 1. I am a board-certified physician with more than thirty years of experience in family
medicine. 2. l am licensed to practice medicine in the state of Ohio. For three years, I have been
the Chief Medical Officer of Planned Parenthood of Greater Ohio (“PPGOH”). I have also been a Clinical Professor of Family and Community Medicine at Northeast Ohio Medical University in Rootstown, Ohio, since 2013.
3. As PPGOH’s Chief Medical Officer, I supervise physicians and clinicians and provide direct reproductive health care to patients. I also manage the provision of all surgical abortion services at PPGOH, and I am responsible for developing PPGOH’s policies and procedures.
4. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Defendants from applying the Ohio Department of Health (“ODH”) Director’s March 17, 2020 order—barring all “non-

Case: 1:19-cv-00360-MRB Doc #: 42-3 Filed: 03/30/20 Page: 2 of 11 PAGEID #: 825
essential” surgeries and medical procedures in Ohio during the COVID-19 outbreak—to ban most surgical abortions indefinitely.
5. The facts I state here are based on my experience, my review of PPGOH’s business records, information obtained in the course of my duties at PPGOH, and personal knowledge that I have acquired through my service at PPGOH. If called and sworn as a witness, I could and would testify competently thereto. PPGOH’s Provision of Abortion Care
6. PPGOH performs medication abortion through 70 days (or 10 weeks) of pregnancy, as measured from the first day of a patient’s last menstrual period (“LMP”), and surgical abortion through 19 weeks and 6 days LMP.
7. In 2019, PPGOH performed 4282 abortions. Of those, 1013 occurred beyond 10 weeks LMP, and were therefore necessarily performed as surgical abortion. Of the 3269 occurring before 10 weeks LMP, 1636 were done by medication abortion and the remaining 1633 by surgical abortion.
8. In January and February 2020, PPGOH performed 676 abortions. Of those, 212 occurred beyond 10 weeks LMP, and were therefore necessarily performed as surgical abortion. Of the 464 occurring before 10 weeks LMP, 305 were done by medication abortion and the remaining 159 by surgical abortion.
9. PPGOH operates two facilities licensed as ambulatory surgical facilities (“ASFs”) under Ohio law. See Ohio Rev. Code § 3703.30. They are located in Bedford Heights and East Columbus, Ohio. All abortions performed by PPGOH take place in these facilities.
10. Surgical abortion requires minimal PPE, particularly as compared to other surgical procedures. PPGOH clinicians use surgical masks, reusable protective eyewear, gloves, hair and
2

Case: 1:19-cv-00360-MRB Doc #: 42-3 Filed: 03/30/20 Page: 3 of 11 PAGEID #: 826
shoe coverings, and typically reusable gowns. Gloves are needed for any ultrasound, laboratory exam, and cleaning. Per CDC guidance, we provide patients for whom there is a concern for COVID-19 or other upper respiratory disease with a mask.
11. The masks that we use for abortions are not N95 masks. Only a small number of workers are physically present for these procedures or their preparation/recovery and therefore in need of PPE. PPGOH’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
12. PPGOH is committed to doing its part to reduce the spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
13. Since the COVID-19 outbreak, in addition to complying with the Director’s Order, PPGOH has taken extensive steps to preserve much-needed medical resources that are in short supply during the pandemic and help prevent the spread of COVID-19 in the communities where we offer services. Even before the Director’s Order, for example, we had excluded residents and medical students from observing or participating in surgeries, which reduced the number of individuals requiring PPE, and have taken other steps to preserve PPE, consistent with CDC guidance. In addition, although in normal times we welcome support people accompanying abortion patients, we have decided not to allow such companions (except parents accompanying minors) to enter our health centers in order to reduce the number of overall people exposed to one another.
14. We have also made changes to the flow of patient care. Before patients may enter a health center, we screen them for COVID-19 symptoms, including by checking for fever.1 Only
1 Similarly, all staff are screened daily for symptoms.
3

Case: 1:19-cv-00360-MRB Doc #: 42-3 Filed: 03/30/20 Page: 4 of 11 PAGEID #: 827
screened individuals can proceed to the front desk to check in and provide their phone number. We have reconfigured our waiting areas to allow for social-distancing, and where there is inadequate space, patients are asked to wait in their cars, where a staff member will call them to do as much intake as possible by phone. Patients are only permitted to reenter the health center when a room has opened for them and a clinician is available to see them.
15. After receiving the Director’s Order, PPGOH promptly adopted a policy to implement it and began to comply with it. A true and correct copy of first PPGOH’s policy is attached as Exhibit A.
16. After Preterm, WMCD, and PPSWO received letters from the Attorney General’s office threatening enforcement if they did not comply with the Director’s Order, and after further communication with the Attorney General’s office, PPGOH amended our policy, and continued to comply with the Director’s Order. A true and correct copy of PPGOH’s current policy is attached as Exhibit B. The amended policy did not change the care we were providing under the Director’s Order.
17. As consistent with our policy and the Order, in providing care, our “physicians will determine on a case-by-case basis whether a surgical abortion or procedure constitutes an essential surgery or procedure that may continue to be provided under the terms of the Order.” Our “physicians shall rely on the Director’s Order” to make that case-by-case determination. When a patient is eligible for both surgical and medication abortion, patients are provided a medication abortion, unless surgical abortion is the more appropriate method. Medication abortion uses less PPE than surgical abortion; indeed, the process of handing patients a pill requires no PPE.
18. PPGOH could make further progress in preserving PPE (as well as reducing overall contagion risks during the pandemic) were it not for various Ohio restrictions on abortion—such
4

Case: 1:19-cv-00360-MRB Doc #: 42-3 Filed: 03/30/20 Page: 5 of 11 PAGEID #: 828
as Ohio’s requirements that force patients to make an extra, medically unnecessary trip to the health center, force patients to receive an ultrasound during that unnecessary trip, restrict medication abortion to ten weeks LMP (even though it can safely be used up to eleven weeks LMP). Harms Caused by the Director’s Order and ODH’s Threat of Enforcement
19. I am aware of cease and desist letters that other providers have received and inspections that have occurred. I am also aware of statements made by the ODH Director, the Governor, and the Attorney General. PPGOH reasonably fears that Defendants will “take all appropriate measures” against abortion providers.
20. Without additional guidance from the ODH and in light of the statements of the Governor and Attorney General, we are concerned that PPGOH could lose its license, and our physicians credibly fear being prosecuted if we continue to provide surgical abortions, which means some of our patients will have later abortions or be denied an abortion entirely.
21. PPGOH has many patients already scheduled for surgical abortions in the coming week at both of its health centers.
22. I declare under penalty of perjury that the foregoing is true and correct. Executed this 30th day of March, 2020.
________________________________ Adarsh Krishen, M.D., M.M.M.
5

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EXHIBIT A

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EXHIBIT B

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

PRETERM-CLEVELAND, INC., et al.,

:

:

Plaintiffs,

:

Case No. 1:19-cv-00360

v.

:

:

DAVID YOST, et al.,

:

Judge Barrett

:

Defendants.

:

DECLARATION OF W.M. MARTIN HASKELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I, W.M. Martin Haskell, declare as follows: 1. I am the sole shareholder of Women’s Med Group Professional Corporation
(WMGPC), which has owned and operated Women’s Med Center of Dayton (WMCD) in Kettering, Ohio since 1983. WMGPC was formerly Women’s Medical Professional Corporation.
2. I am a physician with over 40 years’ experience in women’s health. I have been a licensed physician in the state of Ohio since 1974.
3. I earned a B.A. from Ohio Wesleyan University in 1968 and a Doctorate of Medicine from the University of Alabama in 1972. I received five and one-half years of residency (post graduate) training in anesthesia, general surgery and family practice, completing my residency and passing my Board exam in family medicine in 1978.
4. I have been the Medical Director of WMCD since 1983. As Medical Director I supervise physicians and clinicians and provide direct reproductive health care to patients. I also supervise and manage the provision of all surgical abortion services at WMGPC facilities and am

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responsible for developing WMGPC’s policies and procedures. I provided abortions in an outpatient setting from 1978 until recently in 2019.
5. I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Defendants from applying the Ohio Department of Health (“ODH”) Director’s March 17, 2020, order—barring all “non-essential” surgeries and medical procedures in Ohio during the COVID-19 outbreak—to ban most surgical abortions indefinitely.
6. The facts I state here are based on my experience, my review of WMGPC’s business records, information obtained in the course of my duties at WMGPC and as medical director, and personal knowledge that I have acquired through my caring for patients seeking abortions for decades. If called and sworn as a witness, I could and would testify competently thereto. WMCD’s Provision of Abortion Care
7. WMCD performs medication abortion through 70 days (or 10 weeks) of pregnancy, as measured from the first day of a patient’s last menstrual period (“LMP”), and surgical abortion through 21 weeks and 6 days LMP.
8. WMCD performed 1893 surgical abortions in 2019, 838 of these surgical abortions were after 10 weeks LMP. So far this year, it has performed 353 surgical abortions through February 29, 2020, 170 of these surgical abortions were after 10 weeks LMP.
9. WMCD operates a facility licensed as an ambulatory surgical facility (“ASF”) under Ohio law. See Ohio Rev. Code § 3703.30. It is located in Kettering, Ohio. All abortions performed by WMCD take place in this facility.
2

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10. Surgical abortion require minimal use of PPE. WMCD physicians use surgical masks, reusable protective eyewear, non-sterile gloves, washable gowns, and foot coverings during surgical abortions. WMCD does not use, and does not have in supply, any N-95 masks. WMCD does not use or possess any disposable gowns, or disposable protective eyewear. Only a surgeon and one other person are present for surgical abortions and the fewest number of staff are physically present for preparation/recovery to even further minimize the use of PPE.
11. For an ultrasound or laboratory exam, including one that accompanies surgical abortions, our providers currently use non-sterile gloves. WMCD’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources
12. WMCD is committed to doing its part to reduce the spread of COVID-19 and to otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
13. Since the COVID-19 outbreak, before complying with the Director’s Order, WMCD has taken extensive steps to preserve much-needed medical resources that are in short supply during the pandemic and help prevent the spread of COVID-19 in the community where we offer services. Even before the Director’s Order, for example, we encouraged patients to have medication abortions, and excluded residents and medical students from observing or participating in surgeries, which reduced the number of individuals requiring PPE. In addition, although in normal times we welcome support people accompanying abortion patients, we have decided not to allow such companions (except those accompanying minors) to enter our health centers in order to reduce the number of overall people exposed to one another.
3

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14. We have also made changes to the flow of patient care. Before patients may enter WMCD, we screen them for COVID-19 symptoms, including by checking for fever.1 Only those individuals whose screen negative can proceed to the front desk to check in and provide their phone number. Patients who screen positive are asked to return to their car and are rescheduled to the end of the day. We have reconfigured our waiting areas to allow for social distancing.
15. After receiving the Director’s Order, WMGPC promptly adopted a policy to implement it and began to comply with it the next day. A true and correct copy of WMGPC’s first policy is attached as Exhibit A.2
16. On Friday evening, March 20, 2020, WMCD received a letter via email from the Ohio Attorney General, stating “[o]n behalf of the Department, you and your facility are ordered to immediately stop performing non-essential and elective surgical abortions.” The letter also cautions that “[i]f you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the attached order, the Department of Health will take all appropriate measures.” A true and correct copy of the Attorney General’s Letter is attached as Exhibit B.
17. After receiving the Attorney General’s Letter, WMGPC revised its policy to make clear that our “physicians will determine on a case-by-case basis whether a surgical abortion or procedure constitutes an essential surgery or procedure that may continue to be provided under the terms of the Order.” Our “physicians shall rely on the Director’s Order” to make that case-by-case determination. A true and correct copy of WMGPC’s revised policy is attached as Exhibit C.
1 Similarly, all staff are screened daily for symptoms. 2 WMCD policies have attached the Director’s Order. I have attached hereto the policies without the Order attached.
4

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18. When a WMCD patient is eligible for both surgical and medication abortion, patients are provided a medication abortion, unless surgical abortion is the more appropriate method due to a medical contraindication for medication abortion. Medication abortion uses less PPE than surgical abortion.
19. WMGPC could make further progress in preserving PPE (as well as reducing overall contagion risks during the pandemic) were it not for various Ohio restrictions on abortion— such as Ohio’s requirements that force patients to make an extra, medically unnecessary trip to the health center, force patients to receive an ultrasound during that unnecessary trip, restrict medication abortion to ten weeks LMP (even though it can safely be used up to eleven weeks LMP).
20. On March 26, 2020, two ODH inspectors arrived at WMCD for an unannounced inspection of a complaint, seeking information regarding WMCD’s compliance with the Director’s Order. WMCD fully cooperated with the inspection. Although the ODH inspectors would not tell WMCD the source of the complaint, evidence suggest they came from antiabortion activists.3
21. While the first day of the inspection was still on-going, Governor DeWine announced in a press conference that an essential abortion would be one that protected the life of the pregnant patient.4 At the same conference, Director Acton said that ODH had “listened to the AG” and began to investigate “violations [of the Order] across the state,” including at abortion clinics.
3 https://www.fox19.com/2020/03/23/ohio-abortion-providers-ordered-stop-amid-covid-outbreak/ 4 https://www.ideastream.org/gov-mike-dewine-coronavirus-update-march-26-2020 Starting at 54:00.
5

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22. That same day, Attorney General Yost issued a press release vowing to “take quick enforcement action” once ODH’s investigation was completed.
23. The two inspectors returned on March 27, 2020 to continue their investigation. After two days of inspections, the inspectors left without telling WMCD or me whether or not they had found violations of the Director’s Order or any other regulation. This was a break with established ODH practice and procedure of informing WMCD of the inspection results before leaving. The inspectors said their superiors would make that determination at an unspecified later date and ODH would notify WMCD of their findings. Harms Caused by the Director’s Order and ODH’s Threat of Enforcement
23. Based on the statements made by the ODH Director, the Governor, and the Attorney General, as well as the lack of clear guidance from ODH, regarding enforcement of the Director’s Order, WMGPC, its physicians, and me as Medical Director, reasonably fear that Defendants will “take all appropriate measures” against abortion providers.
24. Without additional guidance from the ODH and in light of the statements of the Governor and Attorney General, I am concerned that WMCD could lose its license, and our physicians credibly fear being prosecuted if they continue to provide surgical abortions, which means some of our patients will have later abortions or be denied an abortion entirely.
25. WMCD has many patients already scheduled for surgical abortions in the coming week at both of its health centers.
Executed this 29th day of March, 2020.
________________________________ W.M. Martin Haskell
6

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EXHIBIT A

Case: 1:19-cv-00360-MRB Doc #: 42-4 Filed: 03/30/20 Page: 8 of 14 PAGEID #: 842
WOMEN’S MED GROUP PROFESSIONAL CORPORATION POLICY IMPLEMENTING OHIO DEPARTMENT OF HEALTH’S MARCH 17, 2020, ORDER FOR THE MANAGEMENT OF NON-ESSENTIAL SURGERIES AND PROCEDURES
THROUGHOUT OHIO
The Director of the Ohio Department of Health issued an Order for the Management of nonessential Surgeries and Procedures throughout Ohio (“Order”). ODH has ordered all non-essential or elective surgeries and procedures that utilize personal protective equipment (“PPE”) to cease at 5:00 p.m. on March 18, 2020 “for the purpose of preventing the spread of contagious and infectious diseases and of preserving PPE and critical hospital capacity and resources in Ohio.” Women’s Med Group Professional Group (“WMGPC”) hereby establishes this policy in order to ensure compliance with ODH’s Order.
As of March 18, 2020, at 5:00 p.m., the following policies and procedures will become effective:
1. No non-essential surgeries and procedures that utilize PPE will be performed.
2. Since a delay in a surgical abortion will negatively affect patient health and safety, WMGPC has determined that surgical abortion constitutes an essential surgery and may continue to be provided under the terms of the Order. WMGPC relies on the following considerations for making this decision:
a. The Order states that a surgery is essential if it cannot “be delayed without undue risk to the current or future health of a patient” and includes, as examples of criteria to consider, the risk to the patient of rapidly worsening to severe symptoms that make the surgery time sensitive, as well as a progression of staging. Pregnancy has a duration of approximately forty weeks as measured from the first day of the woman’s last menstrual period (LMP) and abortions are banned in Ohio beginning at 22 weeks LMP. Ohio Rev. Code § 2919.201. Thus, the timeframe for a patient to obtain an abortion is limited. In addition, while abortion is an extremely safe medical procedure, it is time-sensitive, because it cannot be delayed without increasing the risk to the health of the patient. See, e.g., Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States at 77-78, 162-63 (2018).
b. The recommendation of our Ambulatory Surgical Facility’s Governing Body, which has determined that surgical abortions are essential surgical procedures.
c. The Joint Statement by the American College of Obstetricians and Gynecologists (ACOG), the American Board of Obstetrics & Gynecology, et al., on Abortion Access During the COVID-19 Outbreak, issued March 18, 2020, which states that to “the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is
1

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an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”
d. The Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” issued March 18, 2020, which states that consideration of whether delay of a surgery is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”
3. All surgeries and essential procedures that are performed by WMGPC while the Order is in effect will proceed as follows:
a. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required.
b. Every effort will be made to preserve PPE.
4. This policy, like the underlying Order, shall remain in effect until the State of Emergency declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescinds or modifies the Order.

________________________________________ Medical Director

Approved by Governing Body: Date implemented:

March 18, 2020 March 18, 2020

2

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EXHIBIT B

Case: 1:19-cv-00360-MRB Doc #: 42-4 Filed: 03/30/20 Page: 11 of 14 PAGEID #: 845
Administration Office 614-644-8901
March 20, 2020
Women’s Med Center 1401 Stroop Rd. Dayton, OH 45429
Via email - martyh@fortemgt.com
Re: March 17, 2020, Ohio Dept. of Health Order
Dear Women’s Med Center,
On March 17, 2020, the Ohio Department of Health issued an order pursuant to the Department’s powers under R.C. 3701.13. That order (attached) cancelled all non-essential or elective surgeries and procedures utilizing personal protective equipment (“PPE”) as of 5:00 p.m. on March 18, 2020. The order was issued, in part, to preserve PPE for health care providers who are battling the COVID-19 pandemic that is spreading in our state and also to preserve critical hospital capacity and resources.
The Ohio Department of Health has received a complaint that your facility has been performing or continues to offer to perform surgical abortions, which necessarily involve the use of PPE. On behalf of the Department, you and your facility are ordered to immediately stop performing non-essential and elective surgical abortions. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient. The Department of Health has outlined criteria to consider when determining whether a procedure is essential (see attached order). If you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the attached order, the Department of Health will take all appropriate measures.
This is an unprecedented time in the state’s history and everyone must do their part to help stop the spread of this disease. We look forward to receiving your confirmation that you and your facility are complying with the attached order. You may contact me by email at jonathan.fulkerson@ohioattorneygeneral.gov.
Sincerely,
/s/ Jonathan Fulkerson
Jonathan Fulkerson Deputy Attorney General
30 East Broad Street, 17th Floor | Columbus, Ohio | 43215 www.OhioAttorneyGeneral.gov

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EXHIBIT C

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WOMEN’S MED GROUP PROFESSIONAL CORPORATION POLICY IMPLEMENTING OHIO DEPARTMENT OF HEALTH’S MARCH 17, 2020, ORDER FOR THE MANAGEMENT OF NON-ESSENTIAL SURGERIES AND PROCEDURES
THROUGHOUT OHIO
The Director of the Ohio Department of Health issued an Order for the Management of nonessential Surgeries and Procedures throughout Ohio (“Order”) (see attached Order). ODH has ordered all non-essential or elective surgeries and procedures that utilize personal protective equipment (“PPE”) to cease at 5:00 p.m. on March 18, 2020 “for the purpose of preventing the spread of contagious and infectious diseases and of preserving PPE and critical hospital capacity and resources in Ohio.” Women’s Med Group Professional Group (“WMGPC”) hereby establishes this policy in order to ensure compliance with ODH’s Order.
1. No non-essential surgeries and procedures that utilize PPE will be performed.
2. WMGPC physicians will determine on a case-by-case basis whether a surgical abortion or procedure constitutes an essential surgery or procedure that may continue to be provided under the terms of the Order. WMGPC physicians shall rely on the Director’s Order and should consider the following considerations for making this decision:
a. The Order states that a surgery is essential if it cannot “be delayed without undue risk to the current or future health of a patient” and includes, as examples of criteria to consider, the risk to the patient of rapidly worsening to severe symptoms that make the surgery time sensitive, as well as a progression of staging.
b. Pregnancy has a duration of approximately forty weeks as measured from the first day of the woman’s last menstrual period (LMP) and abortions are banned in Ohio beginning at 22 weeks LMP. Ohio Rev. Code § 2919.201. In addition, while abortion is an extremely safe medical procedure, delay increases the risk to the health of the patient. See, e.g., Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States at 77-78, 162-63 (2018).
c. The Joint Statement by the American College of Obstetricians and Gynecologists (ACOG), the American Board of Obstetrics & Gynecology, et al., on Abortion Access During the COVID-19 Outbreak, issued March 18, 2020, which states that to “the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”
1

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d. The Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” issued March 18, 2020, which states that consideration of whether delay of a surgery is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”
3. All essential surgeries and procedures that are performed by WMGPC while the Order is in effect will proceed as follows:
a. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required.
b. Every effort will be made to preserve PPE.
4. This policy, like the underlying Order, shall remain in effect until the State of Emergency declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescinds or modifies the Order.

________________________________________ Medical Director

Approved by Governing Body: Date implemented: Date Revised:

March 18, 2020 March 18, 2020 March 21, 2020

2

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO

PRETERM-CLEVELAND, INC., et al., Plaintiffs,
v. DAVID YOST, et al.,
Defendants.

:

:

:

Case No. 1:19-cv-00360

:

:

:

Judge Barrett

:

:

DECLARATION OF DAVID BURKONS, M.D., IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
David Burkons, M.D., declares as follows: 1.   I am a board-certified obstetrician-gynecologist. I received my M.D. degree from the University of Michigan in 1973. 2.   l am licensed to practice medicine in the state of Ohio. In 2014, I founded the Northeast Ohio Women’s Center (NEOWC), where I serve as Medical Director. Prior to starting NEOWC, I was in private practice with University Hospitals in Cleveland, and I also served as Medical Director of Preterm for approximately ten years. 3.   As NEOWC’s Medical Director, I supervise physicians and clinicians and provide direct reproductive health care to patients. I also manage the provision of all surgical abortion services at NEOWC, and I am responsible for developing NEOWC’s policies and procedures. 4.   I submit this declaration in support of Plaintiffs’ motion for a temporary restraining order followed by a preliminary injunction, which seeks to enjoin Defendants from applying the Ohio Department of Health (“ODH”) Director’s March 17, 2020, order—barring all “non-

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essential” surgeries and medical procedures in Ohio during the COVID-19 outbreak—to ban most surgical abortions indefinitely.
5.   The facts I state here are based on my experience, my review of NEOWC’s business records, information obtained in the course of my duties at NEOWC, and personal knowledge that I have acquired through my service at NEOWC. If called and sworn as a witness, I could and would testify competently thereto. NEOWC’s Provision of Abortion Care
6.   NEOWC performs medication abortion through 70 days (or 10 weeks) of pregnancy, as measured from the first day of a patient’s last menstrual period (“LMP”), and surgical abortion through 15 weeks and 6 days LMP.
7.   In 2019, NEOWC performed 1901 abortions. Of those, 540 occurred beyond 10 weeks LMP, and were therefore necessarily performed as surgical abortion.
8.   In January and February 2020, NEOWC performed 223 abortions. Of those, 142 occurred beyond 10 weeks LMP, and were therefore necessarily performed as surgical abortion.
9.   NEOWC operates two facilities, one of which is licensed as an ambulatory surgical facility (“ASF”) under Ohio law. See Ohio Rev. Code § 3703.30. The ASF is located in Cuyahoga Falls, Ohio. NEOWC’s other facility is located in Shaker Heights, Ohio, and only medication abortion is performed there. All abortions performed by NEOWC take place in these two facilities.
10.   Surgical abortion requires minimal PPE. NEOWC clinicians use surgical masks, reusable protective eyewear, nonsterile gloves, and typically reusable gowns. Non-sterile gloves are needed for any ultrasound, laboratory exam, and cleaning.
11.   NEOWC does not have or use any N95 masks. Only a small number of workers are physically present for these procedures or their preparation/recovery and therefore in need of PPE.
2

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NEOWC’s Efforts to Prevent COVID-19 Spread and Conserve Needed Resources 12.   NEOWC is committed to doing its part to reduce the spread of COVID-19 and to
otherwise help ensure that our public health system has sufficient resources to meet the challenge of responding to a potential surge of illness.
13.   Since the COVID-19 outbreak, in addition to complying with the Director’s Order, NEOWC has taken extensive steps to preserve much-needed medical resources that are in short supply during the pandemic and help prevent the spread of COVID-19 in the communities where we offer services. For example, although in normal times we welcome support people accompanying abortion patients, we have decided not to allow such companions (except those accompanying minors) to enter our health centers in order to reduce the overall number of people exposed to one another.
14.   We have also made changes to the flow of patient care. Before patients may enter a health center, we screen them for COVID-19 symptoms, including by checking for fever.1 Only screened individuals whose screen is negative can proceed to the front desk to check in. If a patient shows symptoms of COVID-19, we refer them to their primary care physician and ask them to come back after they have been cleared. We have reconfigured our waiting areas to allow for social distancing, and where there is inadequate space, patients are asked to wait in their cars. Patients are only permitted to reenter the health center when a room has opened for them and a clinician is available to see them.
15.   After receiving the Director’s Order, NEOWC promptly adopted a policy to implement the Director’s Order, and is providing care in compliance with that policy. A true and correct copy of NEOWC’s policy is attached as Exhibit A.
1 Similarly, all staff are screened daily for symptoms.
3

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16.   After Preterm, WMCD, and PPSWO received letters from the Attorney General’s office threatening enforcement if they did not comply with the Director’s Order, and after further communication with the Attorney General’s office, NEOWC amended our policy, and continued to comply with the Director’s Order. A true and correct copy of NEOWC’s current policy is attached as Exhibit B. The amended policy did not change the care we were providing under the Director’s Order.
17.   As consistent with our policy and the Order, in providing care, our “physicians will determine on a case-by-case basis whether a surgical abortion or procedure constitutes an essential surgery or procedure that may continue to be provided under the terms of the Order.” Our “physicians shall rely on the Director’s Order” to make that case-by-case determination. When a patient is eligible for both surgical and medication abortion, patients are provided a medication abortion, unless surgical abortion is the more appropriate method. Medication abortion uses less PPE than surgical abortion; indeed, the process of handing patients a pill requires no PPE.
18.   NEOWC could make further progress in preserving PPE (as well as reducing overall contagion risks during the pandemic) were it not for various Ohio restrictions on abortion— such as Ohio’s requirements that force patients to make an extra, medically unnecessary trip to the health center, force patients to receive an ultrasound during that unnecessary trip, restrict medication abortion to ten weeks LMP (even though it can safely be used up to eleven weeks LMP). Harms Caused by the Director’s Order and ODH’s Threat of Enforcement
4

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19.   I am aware of the cease and desist letters that other providers have received and inspections that have occurred. I am also aware of statements made by the ODH Director, the Governor, and the Attorney General. NEOWC reasonably fears that Defendants will “take all appropriate measures” against abortion providers.
20.   Without additional guidance from the ODH and in light of the statements of the Governor and Attorney General, I am concerned that NEOWC could lose its license, and NEOWC’s physicians credibly fear being prosecuted if we continue to provide surgical abortions, which means some of our patients will have later abortions or be denied an abortion entirely.
21.   NEOWC has several patients already scheduled for surgical abortions in the coming week.
22.   I declare under penalty of perjury that the foregoing is true and correct. Executed this 29th day of March, 2020.
/s/ David Burkons, M.D.___________________ David Burkons, M.D.
5

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EXHIBIT A

Case: 1:19-cv-00360-MRB Doc #: 42-5 Filed: 03/30/20 Page: 7 of 11 PAGEID #: 855
NORTHEAST OHIO WOMEN’S CENTER’S POLICY IMPLEMENTING OHIO DEPARTMENT OF HEALTH’S MARCH 17, 2020, ORDER FOR THE MANAGEMENT
OF NON-ESSENTIAL SURGERIES AND PROCEDURES THROUGHOUT OHIO
The Director of the Ohio Department of Health issued an Order for the Management of nonessential Surgeries and Procedures throughout Ohio (“Order”). ODH has ordered all non-essential or elective surgeries and procedures that utilize personal protective equipment (“PPE”) to cease at 5:00 p.m. on March 18, 2020 “for the purpose of preventing the spread of contagious and infectious diseases and of preserving PPE and critical hospital capacity and resources in Ohio.” Northeast Ohio Women’s Center hereby establishes this policy in order to ensure compliance with ODH’s Order.
As of March 18, 2020, at 5:00 p.m., the following policies and procedures will become effective:
1. No non-essential surgeries and procedures that utilize PPE will be performed.
2. Since a delay in a surgical abortion will negatively affect patient health and safety, Northeast Ohio Women’s Center has determined that surgical abortion constitutes an essential surgery and may continue to be provided under the terms of the Order. Northeast Ohio Women’s Center relies on the following considerations for making this decision:
a. The Order states that a surgery is essential if it cannot “be delayed without undue risk to the current or future health of a patient” and includes, as examples of criteria to consider, the risk to the patient of rapidly worsening to severe symptoms that make the surgery time sensitive, as well as a progression of staging. Pregnancy has a duration of approximately forty weeks as measured from the first day of the woman’s last menstrual period (LMP) and abortions are banned in Ohio beginning at 22 weeks LMP. Ohio Rev. Code § 2919.201. Thus, the timeframe for a patient to obtain an abortion is limited. In addition, while abortion is an extremely safe medical procedure, it is time-sensitive, because it cannot be delayed without increasing the risk to the health of the patient. See, e.g., Nat’l Acads. of Scis. Eng’g & Med., The Safety & Quality of Abortion Care in the United States at 77-78, 162-63 (2018).
b. The recommendation of our Ambulatory Surgical Facility’s Governing Body, which has determined that surgical abortions are essential surgical procedures.
c. The Joint Statement by the American College of Obstetricians and Gynecologists (ACOG), the American Board of Obstetrics & Gynecology, et al., on Abortion Access During the COVID-19 Outbreak, issued March 18, 2020, which states that to “the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay
1

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of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”
d. The Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” issued March 18, 2020, which states that consideration of whether delay of a surgery is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”
3. All surgeries and essential procedures that are performed by Northeast Ohio Women’s Center while the Order is in effect will proceed as follows:
a. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required.
b. Every effort will be made to preserve PPE.
4. This policy, like the underlying Order, shall remain in effect until the State of Emergency declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescinds or modifies the Order.

_/s/ David Burkons, M.D. ________________________ Medical Director

Approved by Governing Body: Date implemented:

March 18, 2020 March 18, 2020

2

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EXHIBIT B

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Case: 1:19-cv-00360-MRB Doc #: 42-6 Filed: 03/30/20 Page: 1 of 2 PAGEID #: 860

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

PRETERM-CLEVELAND, INC.,

:

Case No. 1:19-cv-00360

et al.,

:

:

Judge Michael R. Barrett

Plaintiffs,

:

:

v.

:

:

DAVID YOST, et al.,

:

:

Defendants.

:

:

:

:

PROPOSED TEMPORARY RESTRAINING ORDER

Upon consideration of the Plaintiffs’ motion for a temporary restraining and/or

preliminary injunction and the response of Defendants to Plaintiffs’ motion for a temporary

restraining order and/or preliminary injunction, this Court has found and concluded for the

specific reasons required under Federal Rule of Civil Procedure 65(d) that Plaintiffs have shown

(1) a likelihood of success on the merits of their claim, (2) that they will suffer irreparable harm

if an injunction is not issued, and (3) that the balance of harm and the public interest weigh in

favor of granting the temporary restraining order and/or preliminary injunction. Specifically,

Plaintiffs have shown a likelihood of success on their claim that Ohio Health Director’s March

17, 2020 order entitled: “RE: Director’s Order for the Management of Non-essential Surgeries

and Procedures throughout Ohio” (“Director’s Order”), as applied to surgical abortion

procedures, is an unconstitutional deprivation of Plaintiffs’ patients’ Fourteenth Amendment

right to substantive due process because it bans previability abortions.

THEREFORE, it is hereby ORDERED that the motion is GRANTED and Defendants

Director Acton, Attorney General Yost, Hamilton County Prosecutor Joseph Deters, Franklin

Case: 1:19-cv-00360-MRB Doc #: 42-6 Filed: 03/30/20 Page: 2 of 2 PAGEID #: 861 County Prosecutor Ronald O’Brien, Cuyahoga County Prosecutor Michael C. O’Malley, and Summit County Prosecutor Sherri Bevan Walsh; their officers, agents, servants, employees, and attorneys; and those persons in active concert or participation with them who receive actual notice of the order are TEMPORARILY RESTRAINED from enforcing the Director’s Order until _________________, _____, 2020.
Plaintiffs shall not be required to post bond. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995).
IT IS SO ORDERED. Date:
HON. MICHAEL R. BARRETT DISTRICT COURT JUDGE
2

 
 Case: 1:19-cv-00360-MRB Doc #: 43 Filed: 03/30/20 Page: 1 of 8 PAGEID #: 862

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Preterm-Cleveland, et al., Plaintiffs, vs.
Attorney General of Ohio, et al., Defendants.

: : : Case No. 1:19-cv-00360 : : Judge Michael R. Barrett : : : : : :

TEMPORARY RESTRAINING ORDER

This matter is before the Court on Plaintiffs’ Motion for a Temporary Restraining

Order and/or Preliminary Injunction. (Doc. 42). This matter is also before the Court on

Plaintiffs’ Motion to File a Supplemental Complaint. (Doc. 41).

I. BACKGROUND

Plaintiffs—a collection of reproductive healthcare clinics and physicians providing

abortion care—filed their Initial Complaint in this matter in May 2019. The Initial Complaint

includes one count against Defendants challenging the constitutionality of Ohio Senate

Bill 23 of the 133rd General Assembly (“S.B. 23”) also known as the “Heartbeat Protection

Act.” (Doc. 1). Plaintiffs also filed a Motion for a Temporary Restraining Order and/or

Preliminary Injunction enjoining the enforcement of S.B. 23. (Doc. 2). In July 2019, the

Court granted Plaintiffs’ Motion for a Preliminary Injunction and enjoined Defendants from

enforcing or complying with S.B. 23 pending further Order of this Court. (Doc. 29). That

Order remains in effect.

Case: 1:19-cv-00360-MRB Doc #: 43 Filed: 03/30/20 Page: 2 of 8 PAGEID #: 863
Pertinent to the current Order, on March 9, 2020, the Governor of Ohio declared a State of Emergency via Executive Order in light of COVID-19. (Doc. 41-1, PageID 698701). “COVID-19 is a respiratory disease that can result in serious illness or death, is caused by the SARS-CoV-2 virus, which is a new strain of coronavirus that had not been previously identified in humans and can easily spread person to person.” Id.
On March 17, 2020, Defendant Director of the Ohio Department of Health, Amy Acton, issued an order titled “RE: Director’s Order for the Management of Non-essential Surgeries and Procedures throughout Ohio” (“Director’s Order”). Id. The Director’s Order states, inter alia, that:
1. Effective 5:00 p.m. Wednesday March 18, 2020, all non-essential or elective surgeries and procedures that utilized P[ersonal protective equipment (“PPE”)] should not be conducted. 2. A non-essential surgery is a procedure that can be delayed without undue risk to the current or future health of a patient. Examples of criteria to consider include:
a. Threat to the patient’s life if surgery or procedure is not performed; b. Threat of permanent dysfunction of an extremity or organ system; c. Risk of metastasis or progression of staging; or d. Risk of rapidly worsening to severe symptoms (time sensitive). 5. . . . This Order shall remain in full force and effect until the State of Emergency Declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescinds or modifies this Order. Id. Defendant Acton states that the Order’s purposes are to “prevent[] the spread of contagious or infectious diseases” and “preserv[e PPE] and critical hospital capacity and resources within Ohio.” Id. A violation of the Director’s Order is a second-degree misdemeanor. See Ohio Rev. Code. § 3701.352. On March 20, 2020 and March 21, 2020, Defendant Attorney General of Ohio, Dave Yost, sent letters to Plaintiffs Planned Parenthood Southwest Ohio Region,
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Preterm-Cleveland, and Women’s Med Group Professional Organization citing the Director’s Order and stating that “[t]he Ohio Department of Health has received a complaint that your facility has been performing or continues to offer to perform surgical abortions, which necessarily involve the use of PPE.” (Doc. 42-1, PageID 807); (Doc. 422, PageID 820); (Doc. 42-4, PageID 845). Defendant Yost ordered Plaintiffs “to immediately stop performing non-essential and elective surgical abortions.” Id. Defendant Yost concluded that, “[i]f you or your facility do not immediately stop performing nonessential or elective surgical abortions in compliance with the attached order, the Department of Health with take all appropriate measures.” Id.
On March 30, 2020, Plaintiffs filed their Motion to File a Supplemental Complaint and Motion for a Temporary Restraining Order and/or Preliminary Injunction. (Docs. 41, 42). The proposed Supplemental Complaint seeks to add a constitutional challenge to the Director’s Order as applied to surgical abortion procedures. (Doc. 42-1). The Motion for a Temporary Restraining Order and/or Preliminary Injunction requests that the Court temporarily enjoin Defendants from enforcing the Director’s Order in a way that would ban surgical abortion in Ohio. (Doc. 42).
The Court held two informal telephone conferences on March 30, 2020 pursuant to S.D. Ohio Civ. R. 65.1 and Plaintiffs advised the Court of their preference for an immediate ruling on their Motion for a Temporary Restraining Order as they have scheduled surgical abortion surgeries this week.
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II. ANALYSIS a. Standard of Review i. Motion to File Supplemental Complaint
Rule 15(d) of the Federal Rules of Civil Procedure governs supplemental pleadings and permits a party to move to file, and the Court to permit, “a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” FED. R. CIV. P. 15(d). “Rule 15(d) aims ‘to give the court broad discretion in allowing a supplemental pleading.’” Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 625 (6th Cir. 2016) (citing FED. R. CIV. P. 15(d) advisory committee's note to 1963 amendment).
ii. Motion for Temporary Restraining Order Under Federal Rule of Civil Procedure 65, the purpose of a temporary restraining order is to preserve the status quo so that a reasoned resolution of a dispute may be had. See, e.g., Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). In the Sixth Circuit, the standard for obtaining a temporary restraining order and the standard for obtaining a preliminary injunction are the same. Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007). In determining whether to grant or deny a temporary restraining order or a preliminary injunction, the Court must consider four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (per curiam) (en banc) (internal quotation
4

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marks omitted). Due to the urgency of the situation, the Court will decide whether temporary injunctive relief is warranted based on Plaintiffs’ Motion (Doc. 42), along with the affidavits and documents filed in the record as of the date of this Order, and the two telephonic conferences held on March 30, 2020. See FED. R. CIV. P. 65.
b. Holdings i. Motion to File Supplemental Complaint
The facts in Plaintiffs’ Initial Complaint (Doc. 1) are sufficiently related to the facts in Plaintiffs’ proposed Supplemental Complaint (Doc. 41-1) such that the Court will allow Plaintiffs’ supplemental pleading. See Ne. Ohio Coal. for the Homeless, 837 F.3d at 625. The Court finds that the combination of the overlapping subject matter, the Court’s familiarity with that subject matter, and the Court’s prior entry of a Preliminary Injunction related to that subject matter favor allowing the supplemental pleading. See id.
ii. Motion for Temporary Restraining Order The Court concludes, for the reasons required under Federal Rule of Civil Procedure 65(d), that Plaintiffs have shown (1) a likelihood of success on the merits of at least one of its claims; (2) that Plaintiffs and their patients will suffer irreparable harm if an injunction is not issued; (3) that the balance of harm favors Plaintiffs; and (4) that the public interest weighs in favor of granting a temporary restraining order. See Hoover Transp. Servs., Inc. v. Frye, 77 F. App’x 776, 781 (6th Cir. 2003) (“If [plaintiffs] can show a likelihood of success on the merits of any of the claims, an injunction may issue, subject to consideration of the other factors.”). The law is well-settled that women possess a fundamental constitutional right of access to abortions. Roe v. Wade, 410 U.S. 113, 153-54 (1973). Yet the right to terminate
5

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a pregnancy is not absolute: “[A] state may regulate abortion before viability as long as it does not impose an ‘undue burden’ on a woman’s right to terminate her pregnancy.” Women’s Med. Prof’l Corp. v. Taft, 353 F.3d 436, 443 (6th Cir. 2003) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 876 (1992) (emphasis added)). “[T]here ‘exists’ an ‘undue burden’ on a woman's right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016) (quoting Casey, 505 U.S. at 878 (emphasis added in Hellerstedt)).
Defendant Yost’s letters to Plaintiffs suggest his determination that surgical abortions are non-essential surgeries and thus are subject to the Director’s Order. See (Doc. 42-1, PageID 807); (Doc. 42-2, PageID 820); (Doc. 42-4, PageID 845). Defendant Yost’s statements and order in those letters, without more guidance, implicate Plaintiffs’ patients’ Fourteenth Amendment rights. In balancing the four relevant factors and at this stage in the proceedings, Plaintiffs have shown a likelihood of success on the merits on its claim that enforcement of the Director’s Order as applied to surgical abortion procedures will result in an unconstitutional deprivation of Plaintiffs’ patients’ Fourteenth Amendment right to substantive due process because enforcement creates a substantial obstacle in the path of patients seeking pre-viability abortions, thus creating an undue burden on abortion access.
Turning to the factor of irreparable harm, Plaintiffs argue that their patients will suffer serious and irreparable harm in the absence of a temporary restraining order and/or preliminary injunction, as the Director’s Order prevents Ohio women from exercising their
6

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constitutional right to reproductive freedom as protected by the Fourteenth Amendment.1 (Doc. 42). Inasmuch as this Court has determined that the Director’s Order likely places an “undue burden” on a woman’s right to choose a pre-viability abortion, and thus violates her right to privacy guaranteed by the Fourteenth Amendment, the Court further determine that its enforcement would, per se, inflict irreparable harm.
With regard to the remaining factors concerning harm to others and the public interest, Plaintiffs assert that their patients will suffer numerous irreparable harms without injunctive relief and, given the indeterminate length of the Director’s Order, some could be forced to forgo an abortion entirely and carry an unwanted pregnancy to term. (Doc. 42). Defendants have not demonstrated to the Court, at this point, that Plaintiffs’ performance of these surgical procedures will result in any beneficial amount of net saving of PPE in Ohio such that the net saving of PPE outweighs the harm of eliminating abortion. These favors weigh in Plaintiffs’ favor. See Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 896 (6th Cir. 2012); Jackson Womens’ Health Org. v. Currier, 940 F. Supp. 2d 416, 424 (S.D. Miss. 2013).
Accordingly, a temporary restraining order is proper. In that regard, and understanding the novel intersection between the foregoing legal precedent in Roe, Casey, and Hellerstedt that emphasizes the Fourteenth Amendment’s guarantee of the right to reproductive freedom and Ohio’s interest in protecting its citizens during the evolving COVID-19 emergency, the Court holds that Plaintiff healthcare providers are to determine if a surgical abortion procedure can be safely postponed during the pre-viability
1 While clinics and physicians do not possess a constitutional right to perform abortions, they have standing to assert constitutional challenges on behalf of their patients in the abortion context. See Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908 (6th Cir. 2019).
7

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stage to maximize healthcare resources to combat the COVID-19 pandemic. If a

healthcare provider determines, on a case-by-case basis, that the surgical procedure is

medically indicated and cannot be delayed, based on the timing of pre-viability or other

medical conditions, said procedure is deemed legally essential to preserve a woman’s

right to constitutionally protected access to abortions.

III. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Plaintiffs’ Motion to File a

Supplemental Complaint (Doc. 41) is GRANTED. It is further ORDERED that Plaintiffs’

Motion for a Temporary Restraining Order and/or Preliminary Injunction (Doc. 42) is

GRANTED IN PART, to the extent that it seeks a temporary restraining order, and HELD

IN ABEYANCE IN PART, to the extent that it seeks a preliminary injunction. Specifically,

it is hereby ORDERED that Defendant; Defendant’s officers, agents, servants,

employees, and attorneys; and those persons in active concert or participation with them

who receive actual notice of the order are TEMPORARILY RESTRAINED from enforcing

the Director’s Order against Plaintiffs as described above.

This Temporary Restraining Order is effective upon entry and expires fourteen (14)

days thereafter unless dissolved earlier or extended by the Court. There is no bond

requirement. See Molton Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir.

1995) (district court has discretion to issue preliminary injunction with no bond).

IT IS SO ORDERED.

_s/ Michael R. Barrett________ Michael R. Barrett, Judge United States District Court

8

 
 Case: 1:19-cv-00360-MRB Doc #: 48 Filed: 03/31/20 Page: 1 of 32 PAGEID #: 923

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

PRETERM-CLEVELAND C/O B. JESSIE HILL ACLU of Ohio 4506 Chester Ave. Cleveland, OH 44103
PLANNED PARENTHOOD SOUTHWEST OHIO REGION C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
SHARON LINER, M.D. C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
PLANNED PARENTHOOD GREATER OHIO C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
WOMEN’S MED GROUP PROFESSIONAL CORPORATION C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
CAPITAL CARE NETWORK OF TOLEDO C/O Gerhardstein & Branch, LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202
NORTHEAST OHIO WOMEN’S CENTER C/O B. JESSIE HILL ACLU of Ohio 4506 Chester Ave. Cleveland, OH 44103

: Case No. 1:19-cv-00360 : : Judge: Michael R. Barrett : : : SUPPLEMENT TO VERIFIED : COMPLAINT FOR DECLARATORY : AND INJUNCTIVE RELIEF : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

Case: 1:19-cv-00360-MRB Doc #: 48 Filed: 03/31/20 Page: 2 of 32 PAGEID #: 924

Plaintiffs,

:

vs.

:

:

DAVID YOST

:

Attorney General of Ohio

:

30 E. Broad Street, 14th Floor

:

Columbus, OH 43215

:

:

AMY ACTON

:

Director, Ohio Department of Health

:

246 N. High Street

:

Columbus, OH 43215

:

:

KIM G. ROTHERMEL, M.D.

:

Secretary, State Medical Board of Ohio :

30 East Broad Street, 3rd Floor

:

Columbus, OH 43215

:

:

BRUCE R. SAFERIN, D.P.M.

:

Supervising Member, State Medical

:

Board of Ohio

:

30 East Broad Street, 3rd Floor

:

Columbus, OH 43215

:

:

MICHAEL C. O’MALLEY

:

Cuyahoga County Prosecutor

:

Justice Center Bld. Floor 8th and 9th

:

1200 Ontario Street

:

Cleveland, OH 44113

:

:

JOSEPH T. DETERS

:

Hamilton County Prosecutor

:

230 E. Ninth Street, Suite 4000

:

Cincinnati, OH 45202

:

:

RONALD O’BRIEN

:

Franklin County Prosecutor

:

373 S. High Street, 14th Floor

:

Columbus, OH 43215

:

:

GARY BISHOP

:

Richland County Prosecutor

:

38 South Park Street

:

Mansfield, OH 44902

:

:

PAUL J. GAINS

:

2

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Mahoning County Prosecutor

:

21 W. Boardman Street, 6th Floor

:

Youngstown, OH 44503

:

:

MATHIAS HECK, JR.

:

Montgomery County Prosecutor

:

301 W. Third St.

:

P.O. Box 972

:

Dayton, OH 45402

:

:

JULIA R. BATES

:

Lucas County Prosecutor

:

700 Adams Street, Suite 250

:

Toledo, OH 43604

:

:

SHERRI BEVAN WALSH

Summit County Prosecutor

53 University Ave.

Akron, Ohio 44308

Defendants.

SUPPLEMENTAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, by and through their attorneys, bring this Supplemental Complaint against the
above-named Defendants, their employees, agents, and successors in office, and in support thereof state the following:
INTRODUCTION 1. This is a constitutional challenge, under 42 U.S.C. § 1983, to Senate Bill 23, 133rd Gen. Assemb. (hereinafter “the Ban”), attached as Exhibit A. 2. This is also a constitutional challenge to the Ohio Health Director’s March 17, 2020 order entitled: “RE: Director’s Order for the Management of Non-essential Surgeries and Procedures throughout Ohio” (“Director’s Order”), as applied to surgical abortion procedures,

3

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attached as Exhibit B.1 3. In the absence of an injunction, the enforcement of the Director’s Order to ban
virtually all surgical abortion would ban the only abortion method available for all patients who are over 10 weeks pregnant and the only method available to some patients at any point in pregnancy.
4. For over forty-six years, U.S. law has recognized the fundamental federal constitutional right to make the profoundly important and personal decision whether or not to terminate a pregnancy. The U.S. Supreme Court has repeatedly recognized that this right is central to obtaining equality and respecting the dignity, autonomy, and bodily integrity of all individuals.
5. The decision to terminate a pregnancy is informed by a combination of diverse, complex, and interrelated factors that are intimately related to the individual’s values and beliefs, culture and religion, health status and reproductive history, familial situation, and resources and economic stability. In direct conflict with Roe v. Wade, 410 U.S. 113 (1973), and more than four decades of precedent affirming Roe’s central holding, the Ban criminalizes almost all previability abortions. Specifically, the Ban makes it a crime to perform an abortion after detection of cardiac activity, which generally occurs around six weeks in pregnancy, when many women2 are unaware they are pregnant. In so doing, the Ban prohibits approximately 90% of abortions
1 https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/directorsorder-non-essential-surgery-3-17-2020 2 Plaintiffs use “woman” or “women” in this complaint as a short-hand for people who are or may become pregnant, but note that people of all gender identities, including gender nonconforming people and transgender men, may also become pregnant and seek abortion services and would thus also suffer irreparable harm as a result of the Ban.
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currently performed in Ohio and violates Plaintiffs’ patients’ rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.
6. The Ohio Legislature passed the Ban on April 10, 2019, and Governor DeWine signed the Ban on April 11, 2019. If the Ban takes effect as scheduled on July 10, 2019, it will instantly criminalize the performance of almost all abortions in Ohio. Governor DeWine acknowledged that the Ban is blatantly unconstitutional and has stated that the Ban is an opportunity to advocate for “reversal of existing legal precedents.”3
7. Unless this Court grants a temporary restraining order or preliminary injunction, and later a permanent injunction, Plaintiffs will be forced to turn away patients seeking abortion care. This is a direct violation of Plaintiffs’ patients’ fundamental constitutional right to decide whether to have an abortion prior to viability, and causes those patients irreparable harm.
JURISDICTION AND VENUE 8. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. 9. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court. 10. Venue is appropriate under 28 U.S.C § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occur in this judicial district.
PLAINTIFFS
3 Ohio Gov. Mike DeWine Signs Ban on Abortion After 1st Heartbeat, Associated Press (Apr. 12, 2019), https://www.apnews.com/0b1deb8c1f5d41d8ab4c9e32446a55ce. Similarly, S.B. 23’s sponsor in the Senate acknowledged that, if upheld, S.B. 23 would create “a new standard” for determining an abortion restriction’s constitutionality. Talia Kaplan, Ohio “Heartbeat” Abortion Ban Passes Senate as Governor Vows to Sign It, Fox News (Mar. 14, 2019), https://www.foxnews.com/faith-values/ohio-heartbeat-abortion-ban-closer-to-becoming-law.
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11. Plaintiff Preterm-Cleveland (“Preterm”), a nonprofit corporation organized under the laws of the State of Ohio, has operated a reproductive health care clinic in Cleveland, Ohio since 1974. Preterm provides a wide range of reproductive and sexual health care services. The abortion providers at Preterm are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. Preterm faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. Preterm sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
12. Plaintiff Planned Parenthood Southwest Ohio Region (“PPSWO”) is a nonprofit corporation organized under the laws of the State of Ohio. PPSWO and its predecessor organizations have provided a broad range of high-quality reproductive health care to patients in southwest Ohio since 1929. PPSWO’s surgery center, located in Cincinnati, provides abortion services. The abortion providers at PPSWO are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. PPSWO faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. PPSWO sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
13. Plaintiff Sharon Liner, M.D., is a physician licensed to practice medicine in Ohio with fifteen years of experience in women’s healthcare. Dr. Liner is PPSWO’s Medical Director, and in that role she supervises physicians providing abortions, develops PPSWO’s policies and procedures, and provides health care services including abortion. Dr. Liner has been providing abortions since 2002. Dr. Liner faces criminal penalties if she violates the Director’s Order and potential loss of her medical license. She sues on her own behalf and on behalf of her patients.
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14. Plaintiff Planned Parenthood of Greater Ohio (“PPGOH”) is a nonprofit corporation organized under the laws of the State of Ohio. PPGOH was formed in 2012 through a merger of several local and regional Planned Parenthood affiliates that had served patients in Ohio for decades. PPGOH serves patients in northern, eastern, and central Ohio. Four PPGOH health centers, located in East Columbus, Bedford Heights, Mansfield, and Youngstown, provide abortion services. The Mansfield and Youngstown health centers provide only medication abortion services. The abortion providers at PPGOH are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. PPGOH faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. PPGOH sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
15. Plaintiff Women’s Med Group Professional Corporation (“WMGPC”) owns and operates Women’s Med Center of Dayton (“WMCD”) in Kettering, Ohio. WMGPC and its predecessors have been providing abortions in the Dayton area since 1975. The abortion providers at WMCD are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. WMGPC faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. WMGPC sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
16. Plaintiff Capital Care Network of Toledo (“CCNT”), a corporation organized under the laws of the State of Ohio, has operated a health care clinic in Toledo, Ohio since 2007. The abortion providers at CCNT are threatened with criminal penalties, loss of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. CCNT sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
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17. Plaintiff Northeast Ohio Women’s Center (“NEOWC”) is a corporation organized under the laws of the State of Ohio, and operates health care clinics in Cuyahoga Falls and Shaker Heights. NEOWC faces criminal penalties and the loss of its ambulatory surgical facility license for violations of the Director’s Order. NEOWC sues on behalf of itself; its current and future staff, officers, and agents; and its patients.
18. Plaintiffs provide medication abortion, surgical abortion, or both medication and surgical abortion at and after six weeks from the first day of the patient’s last menstrual period (“LMP”). In accordance with Ohio law, no Plaintiffs provide abortion care at or after twenty weeks post-fertilization (twenty-two weeks LMP). Ohio Rev. Code § 2919.201.
DEFENDANTS 19. Defendant David Yost is the Attorney General of the State of Ohio. He is responsible for the enforcement of all laws, including the Ban. Under the Ban, he is also charged with commencing and prosecuting civil forfeiture when directed to do so by the State Medical Board. S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(B). He also has sought to enforce the Director’s Order by sending letters to some of the Plaintiffs telling them “to immediately stop performing non-essential and elective surgical abortions” or ODH “will take all appropriate measures.” Furthermore, he may file an enforcement action to close the facility, refer Plaintiffs and their physicians to local prosecutors for criminal prosecution, and refer to the Medical Board for discipline of Plaintiff Dr. Liner or Plaintiffs’ physicians. He is sued in his official capacity. 20. Defendant Amy Acton, M.D., M.P.H., is the Director of the Ohio Department of Health (“ODH”), which is responsible for promulgating rules to assist in compliance with the Ban, including rules governing the process for determining whether a fetal heartbeat exists and rules dictating reporting requirements. She is charged with administering ODH. She signed the
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Director’s Order and has the authority to enforce it. On March 26, 2019, she publicly announced that ODH was investigating three Plaintiff clinics and sent ODH inspectors to those Plaintiff clinics. As a result of her inspections, she can refer any violations to Defendant Yost for enforcement, including an action to close the facility, and she can revoke Plaintiff’s ASF licenses. She is sued in her official capacity.
21. Defendant Kim G. Rothermel, M.D., is the Secretary of the State Medical Board of Ohio, which is charged with enforcing the physician licensing and civil penalties contained in the Ban. The Board also has authority to act against a physician’s license based on a commission of an unlawful act. She is sued in her official capacity.
22. Defendant Bruce R. Saferin, D.P.M., is the Supervising Member of the State Medical Board of Ohio, which is charged with enforcing the physician licensing and civil penalties contained in the Ban. The Board also has authority to act against a physician’s license based on a commission of an unlawful act. He is sued in his official capacity.
23. Defendant Michael C. O’Malley is the Cuyahoga County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Cuyahoga County, where Preterm’s clinic, PPGOH’s Bedford Heights health center, and NEOWC’s Shaker Heights clinic are located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
24. Defendant Joseph T. Deters is the Hamilton County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Hamilton County, where PPSWO’s Cincinnati surgery center is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
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25. Defendant Ronald O’Brien is the Franklin County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Franklin County, where PPGOH’s East Columbus health center is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
26. Defendant Gary Bishop is the Richland County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Richland County, where PPGOH’s Mansfield health center is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
27. Defendant Paul G. Gains is the Mahoning County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Mahoning County, where PPGOH’s Youngstown health center is located, including the criminal provisions contained in the Ban. He is sued in his official capacity.
28. Defendant Mathias H. Heck, Jr. is the Montgomery County Prosecutor. He is responsible for the enforcement of all of the criminal laws in Montgomery County, where WMGPC’s WMCD facility is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. He is sued in his official capacity.
29. Defendant Julia R. Bates is the Lucas County Prosecutor. She is responsible for the enforcement of all of the criminal laws in Lucas County, where CCNT’s health center is located, including the criminal provisions contained in the Ban. She is sued in her official capacity.
30. Defendant Sherri Bevan Walsh is the Summit County Prosecutor. She is responsible for the enforcement of all of the criminal laws in Summit County, where NEOWC’s
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Cuyahoga Falls health center is located, including the criminal provisions contained in the Ban and for violations of the Director’s Order. She is sued in her official capacity.
LEGAL FRAMEWORK The Ban
31. If a pregnancy is in the uterus, Ohio law requires the provider who intends to perform an abortion to determine whether there is cardiac activity.4 If there is cardiac activity, the Ban makes it a crime to “caus[e] or abet[] the termination of” the pregnancy. S.B. 23 § 1, amending Ohio Rev. Code §§ 2919.192(A), 2919.192(B), 2919.195(A).
32. The Ban has only two very limited exceptions. The Ban permits abortion after cardiac activity is detected only if the abortion is necessary (1) to prevent the patient’s death, or (2) to prevent a “serious risk of the substantial and irreversible impairment of a major bodily function.” S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(B). “‘Serious risk of the substantial and irreversible impairment of a major bodily function’ means any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function.” Ohio Rev. Code § 2919.16(K). A “medically diagnosed condition that constitutes a ‘serious risk of the substantial and irreversible impairment of a major bodily function’ includes pre-eclampsia, inevitable abortion, and premature rupture of the membranes,” but “does not include a condition related to the woman’s mental health.” Id.
33. A violation of the Ban is a fifth-degree felony, punishable by up to one year in
4 The Ban instructs the Ohio Department of Health to adopt rules “specifying the appropriate methods of performing an examination for the purpose of determining the presence of a fetal heartbeat” within 120 days of the Ban’s effective date. S.B. 23 § 1, amending Ohio Rev. Code § 2919.192.
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prison and a fine of $2,500. S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(A); Ohio Rev. Code §§ 2929.14(A)(5), 2929.18(A)(3)(e). In addition to criminal penalties, the state medical board may assess a forfeiture of up to $20,000 for each violation of the Ban, S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(A), and limit, revoke, or suspend a physician’s medical license based on a violation of the Ban, see Ohio Rev. Code § 4371.22(B)(10). The Plaintiff facilities could face criminal penalties and revocation of their ambulatory surgical center license for a violation of the Ban. A patient may also bring a civil action against a provider who violates the Ban and recover damages in the amount of $10,000 or more. S.B. 23 § 1, amending Ohio Rev. Code § 2919.199(B)(1).
The Director’s Order 34. In March 2020, the United States and Ohio both declared a state of emergency related to the COVID-19 pandemic. See Director’s Order at 3; Ohio Exec. Order 2020-01D;5 Proclamation No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020). The virus has reached every State in the country, including approximately 1653 confirmed cases in Ohio and 29 deaths as of the time of filing.6 Federal and state officials and medical professionals expect a surge of infections—which may last for a year or eighteen months7—testing the limits of the

5 Available at https://tinyurl.com/ud789de.

6 CDC, Cases in U.S. (last updated Mar. 29, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/cases-updates/cases-in-us.html;

ODH,

COVID-19,

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/ (last visited Mar. 29, 2020).

7 Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. Times (Mar. 8, 2020), https://www.nytimes.com/2020/03/08/health/fauci-coronavirus.html.

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health care system,8 which is already facing a shortage of personal protective equipment (“PPE”), particularly N95 masks.9
35. In light of this new reality, on March 17, 2020, Dr. Amy Acton, Director of ODH, issued an order barring all “non-essential surgeries and procedures” beginning at 5 p.m. on March 18, 2020. Director’s Order at 4.10 The order states that its purpose is to “preserv[e] personal protective equipment (PPE) and critical hospital capacity and resources within Ohio.” Id.
36. Although the order does not define PPE, Plaintiffs understand that term to refer, for example, to surgical masks, sterile gloves, disposable protective eyewear, disposable gowns, and shoe covers.
37. The Director’s Order defines a “non-essential surgery” as “a procedure that can be delayed without undue risk to the current or future health of a patient,” and lists “[e]xamples of criteria to consider,” including whether there is a “threat to the patient’s life if surgery or [the] procedure is not performed,” a “[t]hreat of permanent dysfunction of an extremity or organ system,” a “risk of metastasis or progression of staging,” or a “risk of rapidly worsening to severe symptoms (time sensitive).” Director’s Order at 4.
38. The Director’s Order remains in effect until the state of emergency declared by
8 Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States, CDC (last updated Feb. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf.html 9 Andrew Jacobs, Matt Richtel & Mike Baker, ‘At War With No Ammo’: Doctors Say Shortage of Protective Gear Is Dire, N.Y. Times (Mar. 19, 2020), https://www.nytimes.com/2020/03/19/health/coronavirus-masks-shortage.html. 10 The Director’s Order cites as its authority section 3701.13, which allows ODH to “make special or standing orders or rules for preventing the spread of contagious or infectious diseases” Ohio. Rev. Code § 3701.13.
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the Ohio governor no longer exists or ODH rescinds or modifies the order. Id. ODH has indicated that it applies to hospitals and ambulatory surgical facilities (“ASF”) in Ohio. See Ohio Rev. Code § 3702.30 (defining ASFs). The Order provides that “[e]ach hospital and outpatient surgery or procedure provider shall establish an internal governance structure to ensure the principles outlined above are followed.” Director’s Order at 4. The Director may petition for injunctive or other relief. Ohio Rev. Code § 3701.57. In addition, violation of the Director’s Order is a second-degree misdemeanor. Ohio Rev. Code § 3701.352.
FACTUAL ALLEGATIONS Six Week Ban
39. In a normally developing embryo, cells that form the basis for development of the heart later in gestation produce activity that can be detected with ultrasound.
40. Consistent with medical practice, as well as existing law, see Ohio Rev. Code § 2919.191(A), Plaintiffs perform an ultrasound to date the pregnancy and to determine whether there is detectable fetal or embryonic cardiac activity.11 Ultrasounds can be performed either by placing a transducer on the patient’s abdomen or by inserting a probe into the patient’s vagina. Many providers, including providers at Plaintiff clinics, use vaginal ultrasound to confirm and date early pregnancy.
41. Using vaginal ultrasound, cardiac activity is generally detectible beginning at approximately six weeks, zero days LMP.12
11 The embryonic stage of pregnancy lasts from fertilization until approximately eight to ten weeks LMP. Beginning at about eleven weeks LMP, the embryo becomes a fetus. 12 See Thomas Gellhaus, M.D., ACOG Opposes Fetal Heartbeat Legislation Restricting Women’s Legal Right to Abortion, American Congress of Obstetricians & Gynecologists (Jan.
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42. Ohio law prohibits abortion after viability, except when that abortion is necessary to preserve the pregnant woman’s life or health.13 Ohio Rev. Code § 2919.17.
43. Six weeks LMP is a pre-viability point in pregnancy. At that point, no embryo is capable of surviving outside of the womb. Thus, the Ban prohibits abortion well before viability.
A. A Ban on Abortion at and After Six Weeks LMP Will Practically Eliminate Abortion Care in Ohio 35. Pregnancy is commonly measured from the first day of a woman’s last menstrual period. A full-term pregnancy is approximately forty weeks LMP. 36. The menstrual cycle is usually approximately four weeks long, but will vary based on the individual. Thus, even a woman with highly regular periods would be four weeks pregnant as measured from her last menstrual period when her missed period occurs. A ban on abortion at and after six weeks would only allow two weeks, at most, for a woman to learn that she is pregnant, decide whether to have an abortion, and to seek and obtain abortion care. 37. Prior to six weeks LMP, many women have none of the physical indicators of pregnancy. Many women do not menstruate at regular intervals, or they go long stretches without experiencing a menstrual period. Menstrual patterns commonly vary with age. Indeed, it is extremely common for women to have irregular periods at some point in their lives. Additionally, women may experience bleeding in early pregnancy that can be mistaken for a period.
18, 2017), https://www.acog.org/About-ACOG/News-Room/Statements/2017/ACOG-OpposesFetal-Heartbeat-Legislation-Restricting-Womens-Legal-Right-to-Abortion. 13 Another provision of Ohio law prohibits abortion after twenty weeks post-fertilization, or twenty-two weeks LMP. Ohio Rev. Code § 2919.201.
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38. Further, women who have certain common medical conditions, such as obesity, those who are breastfeeding, or those who use hormonal contraceptives may experience irregular periods and therefore may not recognize a missed period before six weeks LMP.
39. For all of these reasons, a woman may be six weeks pregnant but not realize she has missed a period, much less consider a missed period unusual or a signal that she may be pregnant.
40. On top of these biological realities, many patients face logistical obstacles that will make it difficult to obtain an abortion before six weeks in pregnancy.
41. For example, Ohio law mandates that a patient make two in-person trips to the clinic before obtaining an abortion in order to consent, determine whether there is cardiac activity, and receive state-mandated information. Ohio Rev. Code § 2317.56. These visits must be at least twenty-four hours apart. Id.
42. State law prohibits Medicaid and other public insurance programs, as well as private insurance plans listed on Ohio’s federally run insurance exchange, from covering abortion. Ohio Rev. Code §§ 9.04, 3901.87; Ohio Admin. Code § 5160-17-01. Thus, patients often need time to gather the resources to pay for the abortion and related costs, as well as to arrange transportation to the clinic, time off from work, and possibly arrange for childcare during appointments.
43. In addition to completing this two-day process, patients under eighteen must obtain written consent from a parent or a court order from a judge before receiving abortion care. Ohio Rev. Code § 2919.121.
44. For all of the reasons stated above, approximately 90% of abortions in Ohio occur after six weeks.
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45. Thus, the Ban will prohibit almost all abortion care in Ohio. Director’s Order
Plaintiffs’ Practices to Protect Patients During the COVID-19 Outbreak and Compliance With Director’s Order 46. Plaintiffs are committed to responding to the current public health crisis, including by preserving much-needed medical resources that are in short supply during the pandemic such as PPE. 47. Neither surgical abortion nor medication abortion requires extensive PPE. A typical surgical abortion requires minimal use of some or all of the following: gloves, a surgical mask, protective eyewear, disposable and/or washable gowns, and hair and shoe covers. Medication abortion uses less PPE than surgical abortion as the process of handing patients a pill requires no PPE at all. Since the Order, when a patient is eligible for both surgical and medication abortion, patients are provided a medication abortion, unless surgical abortion is the more appropriate method. 48. Plaintiffs do not use N95 masks, which, upon information and belief, are the PPE that are in shortest supply during the COVID-19 pandemic, for abortion. Furthermore, only a small number of health care staff are physically present for abortion procedures or their preparation/recovery and therefore in need of PPE. 49. Plaintiffs have also taken other precautions to maximize the safety of their patients and staff and to conserve PPE consistent with CDC guidance. For example, they are screening patients for COVID-19 symptoms before each visit. They have reduced patient volume and/or increased appointment spacing between patients. Plaintiffs have also made changes to the flow of patient care in order to comply with social-distancing recommendations by, for exampling, reconfiguring waiting rooms or having patients wait in their cars. Prior to the
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COVID-19 outbreak, Plaintiffs welcomed support persons to accompany abortion patients, but Plaintiffs have now decided not to allow such companions (except parents accompanying minors) to enter their health centers in order to reduce the number of overall people that can be near one another.
50. Patients who are prevented from obtaining abortion care as a result of the Order must still seek medical care to maintain their health and well-being. Thus, pregnant patients will require care from providers using PPE whether the pregnancy is terminated or not. In the event that this crisis continues for months—as it is expected to do—people will be forced to give birth against their will, necessitating the use of more PPE, and the use of hospital beds.
51. Plaintiffs promptly adopted policies to implement the Director’s Order.14 Each policy forbids the performance of “non-essential surgeries and procedures that utilize PPE” until the end of Ohio’s declared emergency or the Director’s Order is modified or rescinded. Plaintiffs’ policies observed that the timeframe for a patient to obtain an abortion is limited given that abortion is banned in Ohio at 22 weeks LMP.
52. Plaintiffs’ policies direct physicians to consider the plain terms of the Director’s Order, which states that “a surgery is essential if it cannot ‘be delayed without undue risk to the current or future health of a patient’ and includes, as examples of criteria to consider, the risk to the patient of rapidly worsening to severe symptoms that make the surgery time sensitive, as well as a progression of staging.” While abortion is an extremely safe medical procedure, it cannot be delayed without increasing the risk to the health of the patient.
53. Plaintiffs’ policies also cite the position of American College of Obstetricians and
14 Plaintiff Dr. Liner did not adopt such a policy because she is an individual (and not a hospital or ASF); however, as medical director of Plaintiff PPSWO, she was responsible for adoption of its implementing policy.
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Gynecologists (“ACOG”), the American Board of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine. These trusted national medical organizations issued a joint statement on “Abortion Access During the COVID-19 Outbreak,” which provides that “[t]o the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure” because it “is an essential component of comprehensive health care” and “a time-sensitive service for which a delay of several weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely inaccessible.”15
54. Plaintiffs’ policies also cited the Ambulatory Surgery Center Association’s “COVID-19: Guidance for ASCs for Necessary Surgery,” which concurred with the American College of Surgeons’ recommendation that consideration of whether delay of a surgery during the pandemic is appropriate must account for risk to the patient of delay, “including the expectation that a delay of 6–8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.”16
15 ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-accessduring-the-covid-19-outbreak. (Attached as Exhibit D to Liner Declaration in Support of Plaintiffs’ Motion for a TRO.) 16 Ambulatory Surgery Ctr. Ass’n, COVID-19: Guidance for ASCs on Necessary Surgeries (last updated Mar. 19, 2020), https://www.ascassociation.org/asca/resourcecenter/latestnewsresourcecenter/covid-19/covid-19guidance (quoting Am. Coll. of Surgeons, COVID-19: Recommendations for Management of Elective Surgical Procedures (Mar. 13, 2020), https://www.facs.org/about-acs/covid-
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Defendants Yost and Acton’s Enforcement of the Director’s Order 55. Defendants Yost and Acton’s enforcement of the Order began when three Plaintiffs—WMCD, PPSWO, and Preterm—received letters via email from the Ohio Attorney General on March 20 and March 21 ordering those Plaintiffs “to immediately stop performing non-essential and elective surgical abortions” or ODH “will take all appropriate measures.” 56. These Plaintiffs responded to the Attorney General by confirming their compliance with the Director’s Order, amending their policies to clarify that physicians must make a case-by-case determination of whether the abortion is essential, and offering to share their implementing policies. 57. These three Plaintiffs received no further communication from the Attorney General, but were inspected by ODH all day on March 26 and March 27 by two inspectors per facility. After two days of inspections, the inspectors left without telling the facilities whether or not they had found violation of the Director’s Order or any other regulation—a distinct break with established ODH practice and procedure—and instead said their superiors would make that determination at an unspecified later date. 58. On March 26, Director Acton said at a press conference that ODH had “listened to the AG” and began to investigate “violations [of the Order] across the state,” including at abortion clinics.17 At that same press conference, Governor DeWine made clear that he interprets the Director’s Order to allow surgical abortion when the abortion “is done to save someone’s life[.]” That same day, the Attorney General again threatened “quick enforcement 19/information-for-surgeons/elective-surgery). (Attached as Exhibit E to Liner Declaration in Support of Plaintiffs’ Motion for a TRO.) 17 Gov. Mike DeWine Corona Virus Update March 26, 2020, available at https://www.ideastream.org/gov-mike-dewine-coronavirus-update-march-26-2020.
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action” against clinics that continue to provide surgical abortion care.18 59. Enforcement of the Director’s Order to ban virtually all surgical abortion would
ban the only abortion method available for all patients who are over 10 weeks pregnant and the only method available to some patients at any point in pregnancy.
60. There are two main methods of abortion: medication abortion and surgical abortion. Medication abortion involves a combination of two pills: mifepristone and misoprostol. The patient takes the first medication in the health center and then, typically twenty-four to forty-eight hours later, takes the second medication at a location of their choosing, most often at their home, after which they expel the contents of the pregnancy in a manner similar to a miscarriage. Surgical abortion is not what is commonly understood to be “surgery”; it involves no incision. It involves the use of instruments and/or gentle suction to safely empty the contents of the uterus.
61. For some patients, medication abortion is contraindicated or there are other factors that would counsel in favor of a surgical abortion, such as patients with an allergy to the medications or other medical conditions that makes surgical abortion relatively more appropriate.
62. All plaintiffs provide medication abortion up to ten weeks LMP (through seventy days). Plaintiffs provide surgical abortion up to maximum gestations ranging from fifteen weeks and six days up to twenty-one weeks and six days LMP.19
18 Attorney General Yost press release March 26, 2020 states that Attorney General Yost is “the prosecutor” and ODH is the “police officer” and he vowed to “take quick enforcement action once an investigation is completed by [ODH] . . . .” Yost stated that he “stands ready to play our role and pursue legal action on behalf of [ODH].” (Attached as Exhibit C.) 19 Ohio Revised Code section 2919.123 restricts the first drug to the federally approved label, which is ten weeks. See FDA, Mifeprex (mifepristone) Information (last updated Feb. 5, 2018), https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-
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63. According to the latest data from ODH in 2018, 55.7% of Ohio abortions in 2018 occurred before nine weeks gestational age, while 44.3% occurred at or after nine weeks.20 More than 56% of abortions in the state were surgical abortions.21
64. The length of the Director’s Order is tethered to the pandemic, which experts believe will last at least one year to eighteen months, if not more.22 As a result, if applied to ban surgical abortion, the Director’s Order could force patients who would otherwise obtain a surgical abortion—that is, all those who are ten or more weeks pregnant and those with earlier pregnancies for whom medication abortion is not appropriate—to “delay” care until the pandemic is over. Director’s Order at 4. At least 56% of patients seeking abortion in Ohio fall into those categories.
65. To enforce their interpretation of the Director’s Order, Defendants could take action to close the facilities, prosecute Plaintiffs and their staff, and take action on Plaintiffs’ physicians’ medical licenses.
mifepristone-information; Ohio Revised Code section 2919.201 prohibits abortions after twentytwo weeks LMP. 20 John Paulson & Donna L. Smith, ODH, Induced Abortions in Ohio 24 (2019), https://tinyurl.com/ufxuqpw. 21 Id. at 23. 22 See Grady, supra note 7; Am. Coll. of Surgeons, supra note 16; see also Mark Fisher, Ohio’s Schools May Have to Remain Closed for Rest of School Year, DeWine Says, Dayton Daily News (Mar. 15, 2020), https://www.daytondailynews.com/news/local/gov-dewine-ohio-schools-mayhave-remain-closed-for-rest-school-year/wLWoHUCq2mMWKtZPVStxFM (Gov. DeWine acknowledging schools “absolutely” may be closed for the remainder of the school year).
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B. Impact of Banning Abortion Care in Ohio 66. The near-total ban on abortion imposed by S.B. 23, and the ban on surgical abortions under the Director’s Order, would have a devastating impact on the lives of individuals who want to consider or seek abortion in Ohio. 67. Approximately one in four women in this country will have an abortion by age forty-five. A majority of those having abortions (61%) already have at least one child, while most (66%) also plan to have a child or additional children in the future.23 68. Legal abortion is one of the safest medical procedures in the United States and is substantially safer than continuing a pregnancy through to childbirth. The risk of death associated with childbirth is approximately fourteen times higher than that associated with abortion, and every pregnancy-related complication is more common among women giving birth than among those having abortions.24 69. If a woman is forced to continue a pregnancy against her will, it can pose a risk to her physical, mental, and emotional health, as well as to the stability and well-being of her family, including existing children. 70. A child can place economic and emotional strain on a family and may interfere with an individual’s life goals. As most patients who seek abortion already have at least one
23 See Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime Incidence of Abortion: United States, 2008-2014, Guttmacher Institute (Oct. 2017), https://www.guttmacher.org/article/2017/10/population-group-abortion-rates-and-lifetimeincidence-abortion-united-states-2008; Concern for Current and Future Children a Key Reason Women Have Abortions, Guttmacher Institute (Jan. 7, 2008), https://www.guttmacher.org/newsrelease/2008/concern-current-and-future-children-key-reason-women-have-abortions; Abortion Facts, National Abortion Federation, https://prochoice.org/education-and-advocacy/aboutabortion/abortion-facts/. 24 Elizabeth Raymond & David Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215, 215 (Feb. 2012).
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child, families must consider how an additional child will impact their ability to care for the children they already have.
71. Even for someone who is otherwise healthy and has an uncomplicated pregnancy, carrying that pregnancy to term and giving birth poses serious medical risk and can have longterm medical and physical consequences. For a woman with a medical condition caused or exacerbated by pregnancy or for a woman who learns that her fetus has been diagnosed with a severe or lethal anomaly, these risks are increased.
72. Pregnancy, childbirth, and an additional child may exacerbate an already difficult situation for those who have suffered trauma, such as sexual assault or domestic violence.
73. If a woman is forced to continue a pregnancy against her will, it can pose a risk to her physical, mental, and emotional health, as well as to the stability and wellbeing of her family, including existing children.
74. S.B. 23 and the ban under the Director’s Order will have a disproportionate impact on the lives of Black people, other people of color, and people with low incomes in Ohio.
75. Statistics show that in 2017, Black people made up only 12.9% of Ohio’s population but 40% of people who obtained abortions in Ohio; Indigenous (American Indian) people and other people of color (Asian/Pacific Islander, Multiracial, and Hispanic people) made up 8.8% of the population, but 11.9% of the people that obtain abortions.25
76. Were the Ban to go into effect, or Defendants’ enforcement of the Director’s Order to ban surgical abortions not enjoined, Black people are likely to suffer some of the
25 Induced Abortions in Ohio, Ohio Dep’t of Health (2017), https://odh.ohio.gov/wps/portal/gov/odh/know-our-programs/vital-statistics/resources/vsabortionreport2017; Quick Facts: Ohio, U.S. Census Bureau, https://www.census.gov/quickfacts/oh.
24

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gravest consequences. Recent statistics from the U.S. Centers for Disease Control and Prevention show that Black women are three times more likely than White women to die of causes related to pregnancy.26 In Ohio, Black infants are three times more likely than their White counterparts to die before their first birthday.27
77. A large majority of patients who obtain abortion care in Ohio are low income. 78. People who have decided to have an abortion should not be denied access to abortion, nor should their care be delayed. Although abortion is significantly safer than continuing pregnancy through childbirth, the risks associated with abortion increase as pregnancy advances. 79. The COVID-19 pandemic and its fallout do not reduce patients’ needs for abortion; if anything, they make timely access to abortion even more urgent, while raising additional obstacles for patients seeking that care. For example, even before the COVID-19 outbreak, people seeking access faced many obstacles. Low-wage workers often have no paid time off or sick leave, so even if a pregnant worker is able to get time off work for an abortion appointment, they will likely have to forgo part of a paycheck. Patients facing long travel distances typically must arrange and pay for transportation and arrange to take time off work. Many patients must also arrange and pay for childcare while they travel to their abortion appointment.
26 Emily E. Petersen et al., Vital Signs: Pregnancy-Related Deaths, United States, 2011-2015, and Strategies for Prevention, 13 States, 2013-2017, 68 Morbidity & Mortality Weekly Rep. 423 (May 10, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/mm6818e1.htm?s_cid=mm6818e1_w. 27 Ohio Infant Deaths in 2017 Second-Lowest on Record While Racial Disparities in Birth Outcomes Continued, Ohio Dep’t of Health (Dec. 6, 2018), https://odh.ohio.gov/wps/portal/gov/odh/media-center/odh-news-releases/2017-ohio-infantmortality-report.
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80. These obstacles are compounded by the various abortion restrictions already in
effect in Ohio. For example, all patients must make two in-person trips at least twenty-four
hours apart to a health center in order to obtain an abortion. Ohio Rev. Code § 2317.56. Minor
patients, unless emancipated, must also obtain written consent from a parent or a judicial order
before they can receive care. Ohio Rev. Code § 2919.121.
81. Now, during the COVID-19 pandemic, patients must navigate these barriers
against the backdrop of job insecurity, minimal public transit availability, and limited childcare assistance due to mandatory social distancing and shelter in place orders. 28 Indeed, jobless claims are soaring due to the virus.29 All of these factors can result in delay in obtaining care
which, in turn, results in higher financial and emotional costs to the patient. Those patients who
are able to obtain care out of state will face increased risk of exposure to the virus because of this
travel and providers treating those patients will still be using PPE in any case.
28 ODH, Governor DeWine Announces School Closures (Mar. 12, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-canuse/governor-dewine-announces-school-closures; ODH, Governor DeWine Orders Ohio Bars & Restaurants to Close (Mar. 15, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid19/home/news-releases-news-you-can-use/governor-dewine-orders-ohio-bars-restaurants-toclose; ODH, Governor DeWine Announces Additional Temporary Business Closures (Mar. 18, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/news-releases-news-you-canuse/governor-dewine-announces-additional-temporary-business-closures; Ohio Exec. Order 2020-04D; see also White House, The President’s Coronavirus Guidelines for America (Mar. 16, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirusguidance_8.5x11_315PM.pdf; Rebecca Shabad, Fauci Predicts Americans Will Likely Need to Stay Home for at Least Several More Weeks, NBC News (Mar. 20, 2020) https://www.nbcnews.com/politics/donald-trump/fauci-predicts-americans-will-likely-need-stayhome-least-several-n1164701. 29 Scott Noll, As Ohio Unemployment Soars, Some People Are Missing Out on Benefits, News 5 Cleveland (Mar. 19, 2020), https://www.news5cleveland.com/news/local-news/as-ohiounemployment-soars-some-people-are-missing-out-on-benefits.
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82. Furthermore, while much is unknown about COVID-19, including whether it can complicate pregnancy, some pregnant people who are delayed in accessing abortion may be exposed to additional health risks from the disease. ACOG has warned that “pregnant women are known to be at greater risk of severe morbidity and mortality from other respiratory infections such as influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population for COVID-19.”30
83. Absent an injunction, Plaintiffs will have no choice but to turn away patients in need of abortion care. Ohioans’ well-being and dignity would suffer irreparably. The Ban and applying the Director’s Order to ban surgical abortion violate the constitutional rights of Plaintiffs’ patients and irreparably harms them.
CLAIMS FOR RELIEF COUNT I
(Substantive Due Process – Six Week Ban) 84. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 83. 85. By prohibiting abortion prior to viability, the Ban violates Ohioans’ right to privacy guaranteed by the Fourteenth Amendment to the U.S. Constitution. 86. If the Ban is allowed to take effect, Plaintiffs’ patients will be subject to irreparable harm for which no adequate remedy at law exists by preventing Plaintiffs’ patients from obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional,
30 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (March 13, 2020), https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/novelcoronavirus-2019; see also Ctrs. for Disease Control & Prevention, Information for Healthcare Providers: COVID-19 and Pregnant Women (Mar. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/pregnant-women-faq.html.
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medical, emotional, and other harm. COUNT II
(Substantive Due Process – Director’s Order) 87. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 86. 88. Applying the Director’s Order in a way that would ban surgical abortion violates Ohioans’ right to privacy guaranteed by the Fourteenth Amendment to the U.S. Constitution. 89. If Defendants’ efforts to enforce the Director’s Order to ban surgical abortion are not enjoined, Plaintiffs’ patients will be subject to irreparable harm for which no adequate remedy at law exists by preventing Plaintiffs’ patients from obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional, medical, emotional, and other harm.
COUNT III (Due Process – Vagueness – Director’s Order) 90. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 89. 91. Defendants have created ambiguity as to the circumstances in which Plaintiffs can provide surgical abortion as an “essential” surgery consistent with the Director’s Order, making it impossible for Plaintiffs to know what actions are forbidden or required. Plaintiffs therefore do not have adequate guidance as to how to comply with the Director’s Order. This lack of clarity invites arbitrary and discriminatory enforcement of the Director’s Order. 92. Plaintiffs are unable to determine how to comply with the Director’s Order, and yet face criminal penalties and the loss of facility and medical licenses. Therefore, Plaintiffs’ rights secured to them by the due process guarantees of the Fourteenth Amendment to the U.S. Constitution are violated.
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COUNT IV (Equal Protection – Director’s Order) 93. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 92. 94. By selectively burdening patients’ fundamental right to abortion without justification and singling abortion providers and their patients out for differential treatment from providers of other medical services and their patients, Defendants’ attempts to enforce the Director’s Order to ban surgical abortions violate Ohioans’ right to equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution. 95. Unless enjoined, Defendants will subject Plaintiffs and their patients to irreparable harm for which no adequate remedy at law exists by preventing patients from or significantly delaying them in obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional, medical, emotional, and other harm REQUEST FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A. To immediately issue a temporary restraining order and/or preliminary injunction, and later a permanent injunction, restraining Defendants, their employees, agents, and successors in office from enforcing the Ban. B. To immediately issue a temporary restraining order and/or preliminary injunction, and later a permanent injunction, restraining Defendants, their employees, agents, and successors in office from enforcing the Director’s Order to ban virtually all surgical abortions after 10 weeks LMP or under 10 weeks for whom surgical abortion is the more appropriate method. C. To enter a judgment declaring that the Ban and the application of the Director’s Order to ban surgical abortions violates the Fourteenth Amendment to the U.S. Constitution.
29

Case: 1:19-cv-00360-MRB Doc #: 48 Filed: 03/31/20 Page: 30 of 32 PAGEID #: 952 C. To award Plaintiffs their attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. D. To grant such other and further relief as the Court deems just and proper.
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Dated: March 30, 2020
Elizabeth Watson* Rachel Reeves* Brigitte Amiri* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2633 (212) 549-2650 (fax) ewatson@aclu.org rreeves@aclu.org bamiri@aclu.org Counsel for Plaintiff Preterm-Cleveland and Northeast Ohio Women’s Center
Carrie Y. Flaxman Richard Muniz* Planned Parenthood Federation of America 1110 Vermont Ave NW, Suite 300 Washington, DC 20005 (202) 973-4800 (202) 296-3480 (fax) carrie.flaxman@ppfa.org*** richard.muniz@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, and Sharon Liner, M.D.
Hana Bajramovic*** Planned Parenthood Federation of America 123 William Street, Floor 9 New York, NY 10038 (212) 541-7800 (212) 247-6811 (fax) hana.bajramovic@ppfa.org Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood Greater of Ohio, and Sharon Liner, M.D.

Respectfully Submitted,
/s/ B. Jessie Hill** B. Jessie Hill #0074770, Trial Attorney Freda J. Levenson #0045916 American Civil Liberties Union of Ohio, Foundation, Inc. 4506 Chester Ave. Cleveland, OH 44103 (216) 368-0553 – Jessie Hill (614) 586-1972 x 125 – Freda Levenson (614) 586-1974 (fax) bjh11@cwru.edu flevenson@acluohio.org Counsel for Plaintiff Preterm-Cleveland and Northeast Ohio Women’s Center
Jennifer L. Branch # 0038893 Alphonse A. Gerhardstein # 0032053 Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202 (513) 621-9100 (513) 345-5543 (fax) agerhardstein@gbfirm.com jbranch@gbfirm.com Counsel for Plaintiffs Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Sharon Liner, M.D., Women’s Med Group Professional Corporation and Capital Care Network of Toledo
*Applications for admission pro hac vice granted
** Cooperating Counsel for the ACLU of Ohio Foundation
*** Application for admission pro hac vice forthcoming

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Case: 1:19-cv-00360-MRB Doc #: 48 Filed: 03/31/20 Page: 32 of 32 PAGEID #: 954
CERTIFICATE OF SERVICE I hereby certify that on March 31, 2020, a copy of the foregoing pleading was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties have access to this filing through the Court’s system. I further certify that a copy of the foregoing pleading and Notice of Electronic Filing has been served by ordinary U.S. mail and email upon all parties for whom counsel has not yet entered an appearance.
/s/ B. Jessie Hill Trial Attorney for Plaintiffs

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EXHIBIT A

Case: 1:19-cv-00360-MRB Doc #: 48-1 Filed: 03/31/20 Page: 2 of 28 PAGEID #: 956
(133rd General Assembly) (Substitute Senate Bill Number 23)
AN ACT
To amend sections 2317.56, 2919.171, 2919.19, 2919.191, 2919.192, 2919.193, and 4731.22; to amend, for the purpose of adopting new section numbers as indicated in parentheses, sections 2919.191 (2919.192), 2919.192 (2919.194), and 2919.193 (2919.198); and to enact new sections 2919.191 and 2919.193 and sections 2919.195, 2919.196, 2919.197, 2919.199, 2919.1910, 2919.1912, 2919.1913, and 5103.11 of the Revised Code to enact the Human Rights and Heartbeat Protection Act.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 2317.56, 2919.171, 2919.19, 2919.191, 2919.192, 2919.193, and 4731.22 be amended; sections 2919.191 (2919.192), 2919.192 (2919.194), and 2919.193 (2919.198) be amended for the purpose of adopting new section numbers as shown in parentheses; and new sections 2919.191 and 2919.193 and sections 2919.195, 2919.196, 2919.197, 2919.199, 2919.1910, 2919.1912, 2919.1913, and 5103.11 of the Revised Code be enacted to read as follows:
Sec. 2317.56. (A) As used in this section: (1) "Medical emergency" has the same meaning as in section 2919.16 of the Revised Code. (2) "Medical necessity" means a medical condition of a pregnant woman that, in the reasonable judgment of the physician who is attending the woman, so complicates the pregnancy that it necessitates the immediate performance or inducement of an abortion. (3) "Probable gestational age of the embryo or fetus" means the gestational age that, in the judgment of a physician, is, with reasonable probability, the gestational age of the embryo or fetus at the time that the physician informs a pregnant woman pursuant to division (B)(1)(b) of this section. (B) Except when there is a medical emergency or medical necessity, an abortion shall be performed or induced only if all of the following conditions are satisfied: (1) At least twenty-four hours prior to the performance or inducement of the abortion, a physician meets with the pregnant woman in person in an individual, private setting and gives her an adequate opportunity to ask questions about the abortion that will be performed or induced. At this meeting, the physician shall inform the pregnant woman, verbally or, if she is hearing impaired, by other means of communication, of all of the following: (a) The nature and purpose of the particular abortion procedure to be used and the medical risks associated with that procedure; (b) The probable gestational age of the embryo or fetus; (c) The medical risks associated with the pregnant woman carrying the pregnancy to term. The meeting need not occur at the facility where the abortion is to be performed or induced, and the physician involved in the meeting need not be affiliated with that facility or with the

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Sub. S. B. No. 23 2

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physician who is scheduled to perform or induce the abortion. (2) At least twenty-four hours prior to the performance or inducement of the abortion, the
physician who is to perform or induce the abortion or the physician's agent does each of the following in person, by telephone, by certified mail, return receipt requested, or by regular mail evidenced by a certificate of mailing:
(a) Inform the pregnant woman of the name of the physician who is scheduled to perform or induce the abortion;
(b) Give the pregnant woman copies of the published materials described in division (C) of this section;
(c) Inform the pregnant woman that the materials given pursuant to division (B)(2)(b) of this section are published by the state and that they describe the embryo or fetus and list agencies that offer alternatives to abortion. The pregnant woman may choose to examine or not to examine the materials. A physician or an agent of a physician may choose to be disassociated from the materials and may choose to comment or not comment on the materials.
(3) If it has been determined that the unborn human individual the pregnant woman is carrying has a detectable fetal heartbeat, the physician who is to perform or induce the abortion shall comply with the informed consent requirements in section 2919.192 2919.194 of the Revised Code in addition to complying with the informed consent requirements in divisions (B)(1), (2), (4), and (5) of this section.
(4) Prior to the performance or inducement of the abortion, the pregnant woman signs a form consenting to the abortion and certifies both of the following on that form:
(a) She has received the information and materials described in divisions (B)(1) and (2) of this section, and her questions about the abortion that will be performed or induced have been answered in a satisfactory manner.
(b) She consents to the particular abortion voluntarily, knowingly, intelligently, and without coercion by any person, and she is not under the influence of any drug of abuse or alcohol.
The form shall contain the name and contact information of the physician who provided to the pregnant woman the information described in division (B)(1) of this section.
(5) Prior to the performance or inducement of the abortion, the physician who is scheduled to perform or induce the abortion or the physician's agent receives a copy of the pregnant woman's signed form on which she consents to the abortion and that includes the certification required by division (B)(4) of this section.
(C) The department of health shall publish in English and in Spanish, in a typeface large enough to be clearly legible, and in an easily comprehensible format, the following materials on the department's web site:
(1) Materials that inform the pregnant woman about family planning information, of publicly funded agencies that are available to assist in family planning, and of public and private agencies and services that are available to assist her through the pregnancy, upon childbirth, and while the child is dependent, including, but not limited to, adoption agencies. The materials shall be geographically indexed; include a comprehensive list of the available agencies, a description of the services offered by the agencies, and the telephone numbers and addresses of the agencies; and inform the pregnant woman about available medical assistance benefits for prenatal care, childbirth, and neonatal care

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and about the support obligations of the father of a child who is born alive. The department shall ensure that the materials described in division (C)(1) of this section are comprehensive and do not directly or indirectly promote, exclude, or discourage the use of any agency or service described in this division.
(2) Materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the zygote, blastocyte, embryo, or fetus at two-week gestational increments for the first sixteen weeks of pregnancy and at four-week gestational increments from the seventeenth week of pregnancy to full term, including any relevant information regarding the time at which the fetus possibly would be viable. The department shall cause these materials to be published only after it consults with the Ohio state medical association and the Ohio section of the American college of obstetricians and gynecologists independent health care experts relative to the probable anatomical and physiological characteristics of a zygote, blastocyte, embryo, or fetus at the various gestational increments. The materials shall use language that is understandable by the average person who is not medically trained, shall be objective and nonjudgmental, and shall include only accurate scientific information about the zygote, blastocyte, embryo, or fetus at the various gestational increments. If the materials use a pictorial, photographic, or other depiction to provide information regarding the zygote, blastocyte, embryo, or fetus, the materials shall include, in a conspicuous manner, a scale or other explanation that is understandable by the average person and that can be used to determine the actual size of the zygote, blastocyte, embryo, or fetus at a particular gestational increment as contrasted with the depicted size of the zygote, blastocyte, embryo, or fetus at that gestational increment.
(D) Upon the submission of a request to the department of health by any person, hospital, physician, or medical facility for one copy of the materials published in accordance with division (C) of this section, the department shall make the requested copy of the materials available to the person, hospital, physician, or medical facility that requested the copy.
(E) If a medical emergency or medical necessity compels the performance or inducement of an abortion, the physician who will perform or induce the abortion, prior to its performance or inducement if possible, shall inform the pregnant woman of the medical indications supporting the physician's judgment that an immediate abortion is necessary. Any physician who performs or induces an abortion without the prior satisfaction of the conditions specified in division (B) of this section because of a medical emergency or medical necessity shall enter the reasons for the conclusion that a medical emergency or medical necessity exists in the medical record of the pregnant woman.
(F) If the conditions specified in division (B) of this section are satisfied, consent to an abortion shall be presumed to be valid and effective.
(G) The performance or inducement of an abortion without the prior satisfaction of the conditions specified in division (B) of this section does not constitute, and shall not be construed as constituting, a violation of division (A) of section 2919.12 of the Revised Code. The failure of a physician to satisfy the conditions of division (B) of this section prior to performing or inducing an abortion upon a pregnant woman may be the basis of both of the following:
(1) A civil action for compensatory and exemplary damages as described in division (H) of this section;

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(2) Disciplinary action under section 4731.22 of the Revised Code. (H)(1) Subject to divisions (H)(2) and (3) of this section, any physician who performs or induces an abortion with actual knowledge that the conditions specified in division (B) of this section have not been satisfied or with a heedless indifference as to whether those conditions have been satisfied is liable in compensatory and exemplary damages in a civil action to any person, or the representative of the estate of any person, who sustains injury, death, or loss to person or property as a result of the failure to satisfy those conditions. In the civil action, the court additionally may enter any injunctive or other equitable relief that it considers appropriate. (2) The following shall be affirmative defenses in a civil action authorized by division (H)(1) of this section: (a) The physician performed or induced the abortion under the circumstances described in division (E) of this section. (b) The physician made a good faith effort to satisfy the conditions specified in division (B) of this section. (3) An employer or other principal is not liable in damages in a civil action authorized by division (H)(1) of this section on the basis of the doctrine of respondeat superior unless either of the following applies: (a) The employer or other principal had actual knowledge or, by the exercise of reasonable diligence, should have known that an employee or agent performed or induced an abortion with actual knowledge that the conditions specified in division (B) of this section had not been satisfied or with a heedless indifference as to whether those conditions had been satisfied. (b) The employer or other principal negligently failed to secure the compliance of an employee or agent with division (B) of this section. (4) Notwithstanding division (E) of section 2919.12 of the Revised Code, the civil action authorized by division (H)(1) of this section shall be the exclusive civil remedy for persons, or the representatives of estates of persons, who allegedly sustain injury, death, or loss to person or property as a result of a failure to satisfy the conditions specified in division (B) of this section. (I) The department of job and family services shall prepare and conduct a public information program to inform women of all available governmental programs and agencies that provide services or assistance for family planning, prenatal care, child care, or alternatives to abortion. Sec. 2919.171. (A)(1) A physician who performs or induces or attempts to perform or induce an abortion on a pregnant woman shall submit a report to the department of health in accordance with the forms, rules, and regulations adopted by the department that includes all of the information the physician is required to certify in writing or determine under sections section 2919.17 and , section 2919.18, divisions (A) and (C) of section 2919.192, division (C) of section 2919.193, division (B) of section 2919.195, or division (A) of section 2919.196 of the Revised Code:. (2) If a person other than the physician described in division (A)(1) of this section makes or maintains a record required by sections 2919.192 to 2919.196 of the Revised Code on the physician's behalf or at the physician's direction, that person shall comply with the reporting requirement described in division (A)(1) of this section as if the person were the physician described in that division. (B) By September 30 of each year, the department of health shall issue a public report that

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provides statistics for the previous calendar year compiled from all of the reports covering that calendar year submitted to the department in accordance with this section for each of the items listed in division (A) of this section. The report shall also provide the statistics for each previous calendar year in which a report was filed with the department pursuant to this section, adjusted to reflect any additional information that a physician provides to the department in a late or corrected report. The department shall ensure that none of the information included in the report could reasonably lead to the identification of any pregnant woman upon whom an abortion is performed.
(C)(1) The physician shall submit the report described in division (A) of this section to the department of health within fifteen days after the woman is discharged. If the physician fails to submit the report more than thirty days after that fifteen-day deadline, the physician shall be subject to a late fee of five hundred dollars for each additional thirty-day period or portion of a thirty-day period the report is overdue. A physician who is required to submit to the department of health a report under division (A) of this section and who has not submitted a report or has submitted an incomplete report more than one year following the fifteen-day deadline may, in an action brought by the department of health, be directed by a court of competent jurisdiction to submit a complete report to the department of health within a period of time stated in a court order or be subject to contempt of court.
(2) If a physician fails to comply with the requirements of this section, other than filing a late report with the department of health, or fails to submit a complete report to the department of health in accordance with a court order, the physician is subject to division (B)(44) of section 4731.22 of the Revised Code.
(3) No person shall falsify any report required under this section. Whoever violates this division is guilty of abortion report falsification, a misdemeanor of the first degree.
(D) Within ninety days of October 20, 2011, the The department of health shall adopt rules pursuant to section 111.15 of the Revised Code to assist in compliance with this section.
Sec. 2919.19. (A) As used in this section and sections 2919.191 to 2919.193 2919.1910 of the Revised Code:
(A) (1) "Conception" means fertilization. (2) "Contraceptive" means a drug, device, or chemical that prevents conception. (3) "DNA" means deoxyribonucleic acid. (4) "Fetal heartbeat" means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac. (B) (5) "Fetus" means the human offspring developing during pregnancy from the moment of conception and includes the embryonic stage of development. (C) (6) "Gestational age" means the age of an unborn human individual as calculated from the first day of the last menstrual period of a pregnant woman. (D) (7) "Gestational sac" means the structure that comprises the extraembryonic membranes that envelop the fetus and that is typically visible by ultrasound after the fourth week of pregnancy. (E) (8) "Intrauterine pregnancy" means a pregnancy in which the fetus is attached to the placenta within the uterus of the pregnant woman. (9) "Medical emergency" has the same meaning as in section 2919.16 of the Revised Code. (F) (10) "Physician" has the same meaning as in section 2305.113 of the Revised Code.

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(G) (11) "Pregnancy" means the human female reproductive condition that begins with fertilization, when the woman is carrying the developing human offspring, and that is calculated from the first day of the last menstrual period of the woman.
(H) (12) "Serious risk of the substantial and irreversible impairment of a major bodily function" has the same meaning as in section 2919.16 of the Revised Code.
(I) (13) "Spontaneous miscarriage" means the natural or accidental termination of a pregnancy and the expulsion of the fetus, typically caused by genetic defects in the fetus or physical abnormalities in the pregnant woman.
(14) "Standard medical practice" means the degree of skill, care, and diligence that a physician of the same medical specialty would employ in like circumstances. As applied to the method used to determine the presence of a fetal heartbeat for purposes of section 2919.191 2919.192 of the Revised Code, "standard medical practice" includes employing the appropriate means of detection depending on the estimated gestational age of the fetus and the condition of the woman and her pregnancy.
(J) (15) "Unborn human individual" means an individual organism of the species homo sapiens from fertilization until live birth.
(B)(1) It is the intent of the general assembly that a court judgment or order suspending enforcement of any provision of this section or sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code is not to be regarded as tantamount to repeal of that provision.
(2) Upon the issuance of any court order or judgment restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, or the effective date of an amendment to the United States Constitution restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, the attorney general may apply to the pertinent state or federal court for either or both of the following:
(a) A declaration that any one or more sections specified in division (B)(1) of this section are constitutional;
(b) A judgment or order lifting an injunction against the enforcement of any one or more sections specified in division (B)(1) of this section.
(3) If the attorney general fails to apply for the relief described in division (B)(2) of this section within the thirty-day period after an event described in that division occurs, any county prosecutor, with standing, may apply to the appropriate state or federal court for such relief.
(4) If any provision of this section or sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code is held invalid, or if the application of such provision to any person or circumstance is held invalid, the invalidity of that provision does not affect any other provisions or applications of this section and sections 2919.171 and 2919.191 to 2919.1913 of the Revised Code that can be given effect without the invalid provision or application, and to this end the provisions of this section and sections 2919.171 and 2919.191 to 2919.1913 of the Revised Code are severable as provided in section 1.50 of the Revised Code. In particular, it is the intent of the general assembly that any invalidity or potential invalidity of a provision of this section or sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code is not to impair the immediate and continuing enforceability of the remaining provisions. It is furthermore the intent of the general assembly that the provisions of this section and sections 2919.171 or 2919.191 to 2919.1913 of the Revised Code are not to have the

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effect of repealing or limiting any other laws of this state, except as specified by this section and sections 2919.171 and 2919.191 to 2919.1913 of the Revised Code.
Sec. 2919.191. Sections 2919.192 to 2919.195 of the Revised Code apply only to intrauterine pregnancies.
Sec. 2919.191 2919.192. (A) A person who intends to perform or induce an abortion on a pregnant woman shall determine whether there is a detectable fetal heartbeat of the unborn human individual the pregnant woman is carrying. The method of determining the presence of a fetal heartbeat shall be consistent with the person's good faith understanding of standard medical practice, provided that if rules have been adopted under division (C) (B) of this section, the method chosen shall be one that is consistent with the rules. The person who determines the presence or absence of a fetal heartbeat shall record in the pregnant woman's medical record the estimated gestational age of the unborn human individual, the method used to test for a fetal heartbeat, the date and time of the test, and the results of the test.
(B)(1) Except when a medical emergency exists that prevents compliance with this division, no person shall perform or induce an abortion on a pregnant woman prior to determining if the unborn human individual the pregnant woman is carrying has a detectable fetal heartbeat. Any person who performs or induces an abortion on a pregnant woman based on the exception in this division shall note in the pregnant woman's medical records that a medical emergency necessitating the abortion existed and shall also note the medical condition of the pregnant woman that prevented compliance with this division. The person shall maintain a copy of the notes described in this division in the person's own records for at least seven years after the notes are entered into the medical records.
(2) 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.
(C) The (B) Not later than one hundred twenty days of the effective date of S.B. 23 of the 133rd general assembly, the director of health may promulgate shall adopt rules pursuant to section 111.15 of the Revised Code specifying the appropriate methods of performing an examination for the purpose of determining the presence of a fetal heartbeat of an unborn individual based on standard medical practice. The rules shall require only that an examination shall be performed externally.
(D) (C) A person is not in violation of division (A) or (B) of this section if that person has performed an examination for the purpose of determining the presence of a fetal heartbeat in the fetus of an unborn human individual utilizing standard medical practice in accordance with rules adopted under division (B) of this section, that examination does not reveal a fetal heartbeat or the person has been informed by a physician who has performed the examination for a fetal heartbeat that the examination did not reveal a fetal heartbeat, and the person notes in the pregnant woman's medical records the procedure utilized to detect the presence of a fetal heartbeat.
(E) Except as provided in division (F) of this section, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman before determining in accordance with division (A) of this section whether the unborn human individual the pregnant woman is carrying has a detectable heartbeat. The failure of a person to satisfy the requirements of this section prior to performing or inducing an abortion on a pregnant woman may be the basis for either of the following:

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(1) A civil action for compensatory and exemplary damages; (2) Disciplinary action under section 4731.22 of the Revised Code. (F) Division (E) of this section does not apply to a physician who performs or induces the abortion if the physician believes that a medical emergency exists that prevents compliance with that division. (G) The director of health may determine and specify in rules adopted pursuant to section 111.15 of the Revised Code and based upon available medical evidence the statistical probability of bringing an unborn human individual to term based on the gestational age of an unborn human individual who possesses a detectable fetal heartbeat. (H) A woman on whom an abortion is performed in violation of division (B) of this section or division (B)(3) of section 2317.56 of the Revised Code may file a civil action for the wrongful death of the woman's unborn child and may receive at the mother's election at any time prior to final judgment damages in an amount equal to ten thousand dollars or an amount determined by the trier of fact after consideration of the evidence subject to the same defenses and requirements of proof, except any requirement of live birth, as would apply to a suit for the wrongful death of a child who had been born alive. Sec. 2919.193. (A) Except as provided in division (B) of this section, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman before determining in accordance with division (A) of section 2919.192 of the Revised Code whether the unborn human individual the pregnant woman is carrying has a detectable heartbeat. Whoever violates this division is guilty of performing or inducing an abortion before determining whether there is a detectable fetal heartbeat, a felony of the fifth degree. A violation of this division may also be the basis of either of the following: (1) A civil action for compensatory and exemplary damages; (2) Disciplinary action under section 4731.22 of the Revised Code. (B) Division (A) of this section does not apply to a physician who performs or induces the abortion if the physician believes that a medical emergency, as defined in section 2919.16 of the Revised Code, exists that prevents compliance with that division. (C) A physician who performs or induces an abortion on a pregnant woman based on the exception in division (B) of this section shall make written notations in the pregnant woman's medical records of both of the following: (1) The physician's belief that a medical emergency necessitating the abortion existed; (2) The medical condition of the pregnant woman that assertedly prevented compliance with division (A) of this section. For at least seven years from the date the notations are made, the physician shall maintain in the physician's own records a copy of the notations. (D) A person is not in violation of division (A) of this section if the person acts in accordance with division (A) of section 2919.192 of the Revised Code and the method used to determine the presence of a fetal heartbeat does not reveal a fetal heartbeat. Sec. 2919.192 2919.194. (A) If Notwithstanding division (A)(3) of this section, if a person who intends to perform or induce an abortion on a pregnant woman has determined, under section 2919.191 2919.192 of the Revised Code, that the unborn human individual the pregnant woman is

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carrying has a detectable heartbeat, the person shall not, except as provided in division (B) of this section, perform or induce the abortion until without meeting all of the following requirements have been met and without at least twenty-four hours have elapsed elapsing after the last of the requirements is met:
(1) The person intending to perform or induce the abortion shall inform the pregnant woman in writing that the unborn human individual the pregnant woman is carrying has a fetal heartbeat.
(2) The person intending to perform or induce the abortion shall inform the pregnant woman, to the best of the person's knowledge, of the statistical probability of bringing the unborn human individual possessing a detectable fetal heartbeat to term based on the gestational age of the unborn human individual the pregnant woman is carrying or, if the director of health has specified statistical probability information pursuant to rules adopted under division (C) of this section, shall provide to the pregnant woman that information.
(3) The pregnant woman shall sign a form acknowledging that the pregnant woman has received information from the person intending to perform or induce the abortion that the unborn human individual the pregnant woman is carrying has a fetal heartbeat and that the pregnant woman is aware of the statistical probability of bringing the unborn human individual the pregnant woman is carrying to term.
(B) Division (A) of this section does not apply if the person who intends to perform or induce the abortion believes that a medical emergency exists that prevents compliance with that division.
(C) The director of health may adopt rules that specify information regarding the statistical probability of bringing an unborn human individual possessing a detectable heartbeat to term based on the gestational age of the unborn human individual. The rules shall be based on available medical evidence and shall be adopted in accordance with section 111.15 of the Revised Code.
(D) This section does not have the effect of repealing or limiting any other provision of the Revised Code relating to informed consent for an abortion, including the provisions in section 2317.56 of the Revised Code.
(E) Whoever violates division (A) of this section 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.
Sec. 2919.195. (A) Except as provided in division (B) of this section, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the unborn human individual the pregnant woman is carrying and whose fetal heartbeat has been detected in accordance with division (A) of section 2919.192 of the Revised Code.
Whoever violates this division is guilty of performing or inducing an abortion after the detection of a fetal heartbeat, a felony of the fifth degree.
(B) Division (A) of this section does not apply to a physician who performs a medical procedure that, in the physician's reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
A physician who performs a medical procedure as described in this division shall declare, in a written document, that the medical procedure is necessary, to the best of the physician's reasonable

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medical judgment, to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. In the document, the physician shall specify the pregnant woman's medical condition that the medical procedure is asserted to address and the medical rationale for the physician's conclusion that the medical procedure is necessary to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
A physician who performs a medical procedure as described in this division shall place the written document required by this division in the pregnant woman's medical records. The physician shall maintain a copy of the document in the physician's own records for at least seven years from the date the document is created.
(C) A person is not in violation of division (A) of this section if the person acts in accordance with division (A) of section 2919.192 of the Revised Code and the method used to determine the presence of a fetal heartbeat does not reveal a fetal heartbeat.
(D) Division (A) of this section does not have the effect of repealing or limiting any other provision of the Revised Code that restricts or regulates the performance or inducement of an abortion by a particular method or during a particular stage of a pregnancy.
Sec. 2919.196. The provisions of this section are wholly independent of the requirements of sections 2919.192 to 2919.195 of the Revised Code.
(A) A person who performs or induces an abortion on a pregnant woman shall do whichever of the following is applicable:
(1) If a purported reason for the abortion is to preserve the health of the pregnant woman, the person shall specify in a written document the medical condition that the abortion is asserted to address and the medical rationale for the person's conclusion that the abortion is necessary to address that condition.
(2) If division (A)(1) of this section does not apply, the person shall specify in a written document that maternal health is not a reason of the abortion.
(B) The person who specifies the information in the document described in division (A) of this section shall place the document in the pregnant woman's medical records. The person who specifies the information shall maintain a copy of the document in the person's own records for at least seven years from the date the document is created.
Sec. 2919.197. Nothing in sections 2919.19 to 2919.196 of the Revised Code prohibits the sale, use, prescription, or administration of a drug, device, or chemical for contraceptive purposes.
Sec. 2919.193 2919.198. A pregnant woman on whom an abortion is performed or induced in violation of section 2919.191 or 2919.192 2919.193, 2919.194, or 2919.195 of the Revised Code is not guilty of violating any of those sections; is not guilty of attempting to commit, conspiring to commit, or complicity in committing a violation of any of those sections; and is not subject to a civil penalty based on the abortion being performed or induced in violation of any of those sections.
Sec. 2919.199. (A) A woman who meets either or both of the following criteria may file a civil action for the wrongful death of her unborn child:
(1) A woman on whom an abortion was performed or induced in violation of division (A) of section 2919.193 or division (A) of section 2919.195 of the Revised Code;
(2) A woman on whom an abortion was performed or induced who was not given the

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information described in divisions (A)(1) and (2) of section 2919.194 of the Revised Code or who did not sign a form described in division (A)(3) of section 2919.194 of the Revised code.
(B) A woman who prevails in an action filed under division (A) of this section shall receive both of the following from the person who committed the one or more acts described in division (A) (1) or (2) of this section:
(1) Damages in an amount equal to ten thousand dollars or an amount determined by the trier of fact after consideration of the evidence at the mother's election at any time prior to final judgment subject to the same defenses and requirements of proof, except any requirement of live birth, as would apply to a suit for the wrongful death of a child who had been born alive;
(2) Court costs and reasonable attorney's fees. (C) A determination by a court of record that division (A) of section 2919.193 of the Revised Code, division (A)(1), (2), or (3) of section 2919.194 of the Revised Code, or division (A) of section 2919.195 of the Revised Code is unconstitutional shall be a defense to an action filed under division (A) of this section alleging that the defendant violated the division that was determined to be unconstitutional. (D) If the defendant in an action filed under division (A) of this section prevails and all of the following apply the court shall award reasonable attorney's fees to the defendant in accordance with section 2323.51 of the Revised Code: (1) The court finds that the commencement of the action constitutes frivolous conduct, as defined in section 2323.51 of the Revised Code. (2) The court's finding in division (D)(1) of this section is not based on that court or another court determining that division (A) of section 2919.193 of the Revised Code, division (A)(1), (2), or (3) of section 2919.194 of the Revised Code, or division (A) of section 2919.195 of the Revised Code is unconstitutional. (3) The court finds that the defendant was adversely affected by the frivolous conduct. Sec. 2919.1910. (A) To ensure that citizens are informed of available options in this state, there is hereby created the joint legislative committee on adoption promotion and support. The committee may review or study any matter that it considers relevant to the adoption process in this state, with priority given to the study or review of mechanisms intended to increase awareness of the process, increase its effectiveness, or both. (B) The committee shall consist of three members of the house of representatives appointed by the speaker of the house of representatives and three members of the senate appointed by the president of the senate. Not more than two members appointed by the speaker of the house of representatives and not more than two members appointed by the president of the senate may be of the same political party. Each member of the committee shall hold office during the general assembly in which the member is appointed and until a successor has been appointed, notwithstanding the adjournment sine die of the general assembly in which the member was appointed or the expiration of the member's term as a member of the general assembly. Any vacancies occurring among the members of the committee shall be filled in the manner of the original appointment. (C) The committee has the same powers as other standing or select committees of the general assembly.

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Sec. 2919.1912. (A) The state medical board may assess against a person a forfeiture of not more than twenty thousand dollars for each separate violation or failure of the person to comply with any of the requirements of sections 2919.171, 2919.192, 2919.193, 2919.194, 2919.195, or 2919.196 of the Revised Code. The board shall comply with the adjudication requirements of Chapter 119. of the Revised Code when assessing the forfeiture. The forfeiture may be in addition to criminal penalties that are imposed under other sections of the Revised Code.
(B) An action to recover a forfeiture shall be prosecuted in the name of the state and shall be brought in the court of common pleas of Franklin county. The action shall be commenced and prosecuted by the attorney general when directed by the board.
(C) Moneys collected under division (A) of this section or recovered by an action under division (B) of this section shall be paid to the treasurer of state for deposit into the foster care and adoption initiatives fund created under section 5103.11 of the Revised Code.
Sec. 2919.1913. Sections 2919.171, 2919.19 to 2919.1913, and 4731.22 of the Revised Code, as amended or enacted by this act, shall be known as the "Human Rights and Heartbeat Protection Act."
Sec. 4731.22. (A) The state medical board, by an affirmative vote of not fewer than six of its members, may limit, revoke, or suspend a license or certificate to practice or certificate to recommend, refuse to grant a license or certificate, refuse to renew a license or certificate, refuse to reinstate a license or certificate, or reprimand or place on probation the holder of a license or certificate if the individual applying for or holding the license or certificate is found by the board to have committed fraud during the administration of the examination for a license or certificate to practice or to have committed fraud, misrepresentation, or deception in applying for, renewing, or securing any license or certificate to practice or certificate to recommend issued by the board.
(B) The board, by an affirmative vote of not fewer than six members, shall, to the extent permitted by law, limit, revoke, or suspend a license or certificate to practice or certificate to recommend, refuse to issue a license or certificate, refuse to renew a license or certificate, refuse to reinstate a license or certificate, or reprimand or place on probation the holder of a license or certificate for one or more of the following reasons:
(1) Permitting one's name or one's license or certificate to practice to be used by a person, group, or corporation when the individual concerned is not actually directing the treatment given;
(2) Failure to maintain minimal standards applicable to the selection or administration of drugs, or failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease;
(3) Except as provided in section 4731.97 of the Revised Code, selling, giving away, personally furnishing, prescribing, or administering drugs for other than legal and legitimate therapeutic purposes or a plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction of, a violation of any federal or state law regulating the possession, distribution, or use of any drug;
(4) Willfully betraying a professional confidence. For purposes of this division, "willfully betraying a professional confidence" does not include providing any information, documents, or reports under sections 307.621 to 307.629 of the Revised Code to a child fatality review board; does not include providing any information, documents, or

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reports to the director of health pursuant to guidelines established under section 3701.70 of the Revised Code; does not include written notice to a mental health professional under section 4731.62 of the Revised Code; and does not include the making of a report of an employee's use of a drug of abuse, or a report of a condition of an employee other than one involving the use of a drug of abuse, to the employer of the employee as described in division (B) of section 2305.33 of the Revised Code. Nothing in this division affects the immunity from civil liability conferred by section 2305.33 or 4731.62 of the Revised Code upon a physician who makes a report in accordance with section 2305.33 or notifies a mental health professional in accordance with section 4731.62 of the Revised Code. As used in this division, "employee," "employer," and "physician" have the same meanings as in section 2305.33 of the Revised Code.
(5) Making a false, fraudulent, deceptive, or misleading statement in the solicitation of or advertising for patients; in relation to the practice of medicine and surgery, osteopathic medicine and surgery, podiatric medicine and surgery, or a limited branch of medicine; or in securing or attempting to secure any license or certificate to practice issued by the board.
As used in this division, "false, fraudulent, deceptive, or misleading statement" means a statement that includes a misrepresentation of fact, is likely to mislead or deceive because of a failure to disclose material facts, is intended or is likely to create false or unjustified expectations of favorable results, or includes representations or implications that in reasonable probability will cause an ordinarily prudent person to misunderstand or be deceived.
(6) A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established;
(7) Representing, with the purpose of obtaining compensation or other advantage as personal gain or for any other person, that an incurable disease or injury, or other incurable condition, can be permanently cured;
(8) The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice;
(9) A plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a felony;
(10) Commission of an act that constitutes a felony in this state, regardless of the jurisdiction in which the act was committed;
(11) A plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a misdemeanor committed in the course of practice;
(12) Commission of an act in the course of practice that constitutes a misdemeanor in this state, regardless of the jurisdiction in which the act was committed;
(13) A plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a misdemeanor involving moral turpitude;
(14) Commission of an act involving moral turpitude that constitutes a misdemeanor in this state, regardless of the jurisdiction in which the act was committed;
(15) Violation of the conditions of limitation placed by the board upon a license or certificate to practice;
(16) Failure to pay license renewal fees specified in this chapter;

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(17) Except as authorized in section 4731.31 of the Revised Code, engaging in the division of fees for referral of patients, or the receiving of a thing of value in return for a specific referral of a patient to utilize a particular service or business;
(18) Subject to section 4731.226 of the Revised Code, violation of any provision of a code of ethics of the American medical association, the American osteopathic association, the American podiatric medical association, or any other national professional organizations that the board specifies by rule. The state medical board shall obtain and keep on file current copies of the codes of ethics of the various national professional organizations. The individual whose license or certificate is being suspended or revoked shall not be found to have violated any provision of a code of ethics of an organization not appropriate to the individual's profession.
For purposes of this division, a "provision of a code of ethics of a national professional organization" does not include any provision that would preclude the making of a report by a physician of an employee's use of a drug of abuse, or of a condition of an employee other than one involving the use of a drug of abuse, to the employer of the employee as described in division (B) of section 2305.33 of the Revised Code. Nothing in this division affects the immunity from civil liability conferred by that section upon a physician who makes either type of report in accordance with division (B) of that section. As used in this division, "employee," "employer," and "physician" have the same meanings as in section 2305.33 of the Revised Code.
(19) Inability to practice according to acceptable and prevailing standards of care by reason of mental illness or physical illness, including, but not limited to, physical deterioration that adversely affects cognitive, motor, or perceptive skills.
In enforcing this division, the board, upon a showing of a possible violation, may compel any individual authorized to practice by this chapter or who has submitted an application pursuant to this chapter to submit to a mental examination, physical examination, including an HIV test, or both a mental and a physical examination. The expense of the examination is the responsibility of the individual compelled to be examined. Failure to submit to a mental or physical examination or consent to an HIV test ordered by the board constitutes an admission of the allegations against the individual unless the failure is due to circumstances beyond the individual's control, and a default and final order may be entered without the taking of testimony or presentation of evidence. If the board finds an individual unable to practice because of the reasons set forth in this division, the board shall require the individual to submit to care, counseling, or treatment by physicians approved or designated by the board, as a condition for initial, continued, reinstated, or renewed authority to practice. An individual affected under this division shall be afforded an opportunity to demonstrate to the board the ability to resume practice in compliance with acceptable and prevailing standards under the provisions of the individual's license or certificate. For the purpose of this division, any individual who applies for or receives a license or certificate to practice under this chapter accepts the privilege of practicing in this state and, by so doing, shall be deemed to have given consent to submit to a mental or physical examination when directed to do so in writing by the board, and to have waived all objections to the admissibility of testimony or examination reports that constitute a privileged communication.
(20) Except as provided in division (F)(1)(b) of section 4731.282 of the Revised Code or when civil penalties are imposed under section 4731.225 of the Revised Code, and subject to section

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4731.226 of the Revised Code, violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provisions of this chapter or any rule promulgated by the board.
This division does not apply to a violation or attempted violation of, assisting in or abetting the violation of, or a conspiracy to violate, any provision of this chapter or any rule adopted by the board that would preclude the making of a report by a physician of an employee's use of a drug of abuse, or of a condition of an employee other than one involving the use of a drug of abuse, to the employer of the employee as described in division (B) of section 2305.33 of the Revised Code. Nothing in this division affects the immunity from civil liability conferred by that section upon a physician who makes either type of report in accordance with division (B) of that section. As used in this division, "employee," "employer," and "physician" have the same meanings as in section 2305.33 of the Revised Code.
(21) The violation of section 3701.79 of the Revised Code or of any abortion rule adopted by the director of health pursuant to section 3701.341 of the Revised Code;
(22) Any of the following actions taken by an agency responsible for authorizing, certifying, or regulating an individual to practice a health care occupation or provide health care services in this state or another jurisdiction, for any reason other than the nonpayment of fees: the limitation, revocation, or suspension of an individual's license to practice; acceptance of an individual's license surrender; denial of a license; refusal to renew or reinstate a license; imposition of probation; or issuance of an order of censure or other reprimand;
(23) The violation of section 2919.12 of the Revised Code or the performance or inducement of an abortion upon a pregnant woman with actual knowledge that the conditions specified in division (B) of section 2317.56 of the Revised Code have not been satisfied or with a heedless indifference as to whether those conditions have been satisfied, unless an affirmative defense as specified in division (H)(2) of that section would apply in a civil action authorized by division (H)(1) of that section;
(24) The revocation, suspension, restriction, reduction, or termination of clinical privileges by the United States department of defense or department of veterans affairs or the termination or suspension of a certificate of registration to prescribe drugs by the drug enforcement administration of the United States department of justice;
(25) Termination or suspension from participation in the medicare or medicaid programs by the department of health and human services or other responsible agency;
(26) Impairment of ability to practice according to acceptable and prevailing standards of care because of habitual or excessive use or abuse of drugs, alcohol, or other substances that impair ability to practice.
For the purposes of this division, any individual authorized to practice by this chapter accepts the privilege of practicing in this state subject to supervision by the board. By filing an application for or holding a license or certificate to practice under this chapter, an individual shall be deemed to have given consent to submit to a mental or physical examination when ordered to do so by the board in writing, and to have waived all objections to the admissibility of testimony or examination reports that constitute privileged communications.
If it has reason to believe that any individual authorized to practice by this chapter or any

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applicant for licensure or certification to practice suffers such impairment, the board may compel the individual to submit to a mental or physical examination, or both. The expense of the examination is the responsibility of the individual compelled to be examined. Any mental or physical examination required under this division shall be undertaken by a treatment provider or physician who is qualified to conduct the examination and who is chosen by the board.
Failure to submit to a mental or physical examination ordered by the board constitutes an admission of the allegations against the individual unless the failure is due to circumstances beyond the individual's control, and a default and final order may be entered without the taking of testimony or presentation of evidence. If the board determines that the individual's ability to practice is impaired, the board shall suspend the individual's license or certificate or deny the individual's application and shall require the individual, as a condition for initial, continued, reinstated, or renewed licensure or certification to practice, to submit to treatment.
Before being eligible to apply for reinstatement of a license or certificate suspended under this division, the impaired practitioner shall demonstrate to the board the ability to resume practice in compliance with acceptable and prevailing standards of care under the provisions of the practitioner's license or certificate. The demonstration shall include, but shall not be limited to, the following:
(a) Certification from a treatment provider approved under section 4731.25 of the Revised Code that the individual has successfully completed any required inpatient treatment;
(b) Evidence of continuing full compliance with an aftercare contract or consent agreement; (c) Two written reports indicating that the individual's ability to practice has been assessed and that the individual has been found capable of practicing according to acceptable and prevailing standards of care. The reports shall be made by individuals or providers approved by the board for making the assessments and shall describe the basis for their determination. The board may reinstate a license or certificate suspended under this division after that demonstration and after the individual has entered into a written consent agreement. When the impaired practitioner resumes practice, the board shall require continued monitoring of the individual. The monitoring shall include, but not be limited to, compliance with the written consent agreement entered into before reinstatement or with conditions imposed by board order after a hearing, and, upon termination of the consent agreement, submission to the board for at least two years of annual written progress reports made under penalty of perjury stating whether the individual has maintained sobriety. (27) A second or subsequent violation of section 4731.66 or 4731.69 of the Revised Code; (28) Except as provided in division (N) of this section: (a) Waiving the payment of all or any part of a deductible or copayment that a patient, pursuant to a health insurance or health care policy, contract, or plan that covers the individual's services, otherwise would be required to pay if the waiver is used as an enticement to a patient or group of patients to receive health care services from that individual; (b) Advertising that the individual will waive the payment of all or any part of a deductible or copayment that a patient, pursuant to a health insurance or health care policy, contract, or plan that covers the individual's services, otherwise would be required to pay. (29) Failure to use universal blood and body fluid precautions established by rules adopted under section 4731.051 of the Revised Code;

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(30) Failure to provide notice to, and receive acknowledgment of the notice from, a patient when required by section 4731.143 of the Revised Code prior to providing nonemergency professional services, or failure to maintain that notice in the patient's medical record;
(31) Failure of a physician supervising a physician assistant to maintain supervision in accordance with the requirements of Chapter 4730. of the Revised Code and the rules adopted under that chapter;
(32) Failure of a physician or podiatrist to enter into a standard care arrangement with a clinical nurse specialist, certified nurse-midwife, or certified nurse practitioner with whom the physician or podiatrist is in collaboration pursuant to section 4731.27 of the Revised Code or failure to fulfill the responsibilities of collaboration after entering into a standard care arrangement;
(33) Failure to comply with the terms of a consult agreement entered into with a pharmacist pursuant to section 4729.39 of the Revised Code;
(34) Failure to cooperate in an investigation conducted by the board under division (F) of this section, including failure to comply with a subpoena or order issued by the board or failure to answer truthfully a question presented by the board in an investigative interview, an investigative office conference, at a deposition, or in written interrogatories, except that failure to cooperate with an investigation shall not constitute grounds for discipline under this section if a court of competent jurisdiction has issued an order that either quashes a subpoena or permits the individual to withhold the testimony or evidence in issue;
(35) Failure to supervise an oriental medicine practitioner or acupuncturist in accordance with Chapter 4762. of the Revised Code and the board's rules for providing that supervision;
(36) Failure to supervise an anesthesiologist assistant in accordance with Chapter 4760. of the Revised Code and the board's rules for supervision of an anesthesiologist assistant;
(37) Assisting suicide, as defined in section 3795.01 of the Revised Code; (38) Failure to comply with the requirements of section 2317.561 of the Revised Code; (39) Failure to supervise a radiologist assistant in accordance with Chapter 4774. of the Revised Code and the board's rules for supervision of radiologist assistants; (40) Performing or inducing an abortion at an office or facility with knowledge that the office or facility fails to post the notice required under section 3701.791 of the Revised Code; (41) Failure to comply with the standards and procedures established in rules under section 4731.054 of the Revised Code for the operation of or the provision of care at a pain management clinic; (42) Failure to comply with the standards and procedures established in rules under section 4731.054 of the Revised Code for providing supervision, direction, and control of individuals at a pain management clinic; (43) Failure to comply with the requirements of section 4729.79 or 4731.055 of the Revised Code, unless the state board of pharmacy no longer maintains a drug database pursuant to section 4729.75 of the Revised Code; (44) Failure to comply with the requirements of section 2919.171, 2919.202, or 2919.203 of the Revised Code or failure to submit to the department of health in accordance with a court order a complete report as described in section 2919.171 or 2919.202 of the Revised Code; (45) Practicing at a facility that is subject to licensure as a category III terminal distributor of

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dangerous drugs with a pain management clinic classification unless the person operating the facility has obtained and maintains the license with the classification;
(46) Owning a facility that is subject to licensure as a category III terminal distributor of dangerous drugs with a pain management clinic classification unless the facility is licensed with the classification;
(47) Failure to comply with any of the requirement requirements regarding making or maintaining notes medical records or documents described in division (B) (A) of section 2919.191 2919.192, division (C) of section 2919.193, division (B) of section 2919.195, or division (A) of section 2919.196 of the Revised Code or failure to satisfy the requirements of section 2919.191 of the Revised Code prior to performing or inducing an abortion upon a pregnant woman;
(48) Failure to comply with the requirements in section 3719.061 of the Revised Code before issuing for a minor a prescription for an opioid analgesic, as defined in section 3719.01 of the Revised Code;
(49) Failure to comply with the requirements of section 4731.30 of the Revised Code or rules adopted under section 4731.301 of the Revised Code when recommending treatment with medical marijuana;
(50) Practicing at a facility, clinic, or other location that is subject to licensure as a category III terminal distributor of dangerous drugs with an office-based opioid treatment classification unless the person operating that place has obtained and maintains the license with the classification;
(51) Owning a facility, clinic, or other location that is subject to licensure as a category III terminal distributor of dangerous drugs with an office-based opioid treatment classification unless that place is licensed with the classification;
(52) A pattern of continuous or repeated violations of division (E)(2) or (3) of section 3963.02 of the Revised Code.
(C) Disciplinary actions taken by the board under divisions (A) and (B) of this section shall be taken pursuant to an adjudication under Chapter 119. of the Revised Code, except that in lieu of an adjudication, the board may enter into a consent agreement with an individual to resolve an allegation of a violation of this chapter or any rule adopted under it. A consent agreement, when ratified by an affirmative vote of not fewer than six members of the board, shall constitute the findings and order of the board with respect to the matter addressed in the agreement. If the board refuses to ratify a consent agreement, the admissions and findings contained in the consent agreement shall be of no force or effect.
A telephone conference call may be utilized for ratification of a consent agreement that revokes or suspends an individual's license or certificate to practice or certificate to recommend. The telephone conference call shall be considered a special meeting under division (F) of section 121.22 of the Revised Code.
If the board takes disciplinary action against an individual under division (B) of this section for a second or subsequent plea of guilty to, or judicial finding of guilt of, a violation of section 2919.123 of the Revised Code, the disciplinary action shall consist of a suspension of the individual's license or certificate to practice for a period of at least one year or, if determined appropriate by the board, a more serious sanction involving the individual's license or certificate to practice. Any consent agreement entered into under this division with an individual that pertains to a second or

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subsequent plea of guilty to, or judicial finding of guilt of, a violation of that section shall provide for a suspension of the individual's license or certificate to practice for a period of at least one year or, if determined appropriate by the board, a more serious sanction involving the individual's license or certificate to practice.
(D) For purposes of divisions (B)(10), (12), and (14) of this section, the commission of the act may be established by a finding by the board, pursuant to an adjudication under Chapter 119. of the Revised Code, that the individual committed the act. The board does not have jurisdiction under those divisions if the trial court renders a final judgment in the individual's favor and that judgment is based upon an adjudication on the merits. The board has jurisdiction under those divisions if the trial court issues an order of dismissal upon technical or procedural grounds.
(E) The sealing of conviction records by any court shall have no effect upon a prior board order entered under this section or upon the board's jurisdiction to take action under this section if, based upon a plea of guilty, a judicial finding of guilt, or a judicial finding of eligibility for intervention in lieu of conviction, the board issued a notice of opportunity for a hearing prior to the court's order to seal the records. The board shall not be required to seal, destroy, redact, or otherwise modify its records to reflect the court's sealing of conviction records.
(F)(1) The board shall investigate evidence that appears to show that a person has violated any provision of this chapter or any rule adopted under it. Any person may report to the board in a signed writing any information that the person may have that appears to show a violation of any provision of this chapter or any rule adopted under it. In the absence of bad faith, any person who reports information of that nature or who testifies before the board in any adjudication conducted under Chapter 119. of the Revised Code shall not be liable in damages in a civil action as a result of the report or testimony. Each complaint or allegation of a violation received by the board shall be assigned a case number and shall be recorded by the board.
(2) Investigations of alleged violations of this chapter or any rule adopted under it shall be supervised by the supervising member elected by the board in accordance with section 4731.02 of the Revised Code and by the secretary as provided in section 4731.39 of the Revised Code. The president may designate another member of the board to supervise the investigation in place of the supervising member. No member of the board who supervises the investigation of a case shall participate in further adjudication of the case.
(3) In investigating a possible violation of this chapter or any rule adopted under this chapter, or in conducting an inspection under division (E) of section 4731.054 of the Revised Code, the board may question witnesses, conduct interviews, administer oaths, order the taking of depositions, inspect and copy any books, accounts, papers, records, or documents, issue subpoenas, and compel the attendance of witnesses and production of books, accounts, papers, records, documents, and testimony, except that a subpoena for patient record information shall not be issued without consultation with the attorney general's office and approval of the secretary and supervising member of the board.
(a) Before issuance of a subpoena for patient record information, the secretary and supervising member shall determine whether there is probable cause to believe that the complaint filed alleges a violation of this chapter or any rule adopted under it and that the records sought are relevant to the alleged violation and material to the investigation. The subpoena may apply only to

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records that cover a reasonable period of time surrounding the alleged violation. (b) On failure to comply with any subpoena issued by the board and after reasonable notice to
the person being subpoenaed, the board may move for an order compelling the production of persons or records pursuant to the Rules of Civil Procedure.
(c) A subpoena issued by the board may be served by a sheriff, the sheriff's deputy, or a board employee or agent designated by the board. Service of a subpoena issued by the board may be made by delivering a copy of the subpoena to the person named therein, reading it to the person, or leaving it at the person's usual place of residence, usual place of business, or address on file with the board. When serving a subpoena to an applicant for or the holder of a license or certificate issued under this chapter, service of the subpoena may be made by certified mail, return receipt requested, and the subpoena shall be deemed served on the date delivery is made or the date the person refuses to accept delivery. If the person being served refuses to accept the subpoena or is not located, service may be made to an attorney who notifies the board that the attorney is representing the person.
(d) A sheriff's deputy who serves a subpoena shall receive the same fees as a sheriff. Each witness who appears before the board in obedience to a subpoena shall receive the fees and mileage provided for under section 119.094 of the Revised Code.
(4) All hearings, investigations, and inspections of the board shall be considered civil actions for the purposes of section 2305.252 of the Revised Code.
(5) A report required to be submitted to the board under this chapter, a complaint, or information received by the board pursuant to an investigation or pursuant to an inspection under division (E) of section 4731.054 of the Revised Code is confidential and not subject to discovery in any civil action.
The board shall conduct all investigations or inspections and proceedings in a manner that protects the confidentiality of patients and persons who file complaints with the board. The board shall not make public the names or any other identifying information about patients or complainants unless proper consent is given or, in the case of a patient, a waiver of the patient privilege exists under division (B) of section 2317.02 of the Revised Code, except that consent or a waiver of that nature is not required if the board possesses reliable and substantial evidence that no bona fide physician-patient relationship exists.
The board may share any information it receives pursuant to an investigation or inspection, including patient records and patient record information, with law enforcement agencies, other licensing boards, and other governmental agencies that are prosecuting, adjudicating, or investigating alleged violations of statutes or administrative rules. An agency or board that receives the information shall comply with the same requirements regarding confidentiality as those with which the state medical board must comply, notwithstanding any conflicting provision of the Revised Code or procedure of the agency or board that applies when it is dealing with other information in its possession. In a judicial proceeding, the information may be admitted into evidence only in accordance with the Rules of Evidence, but the court shall require that appropriate measures are taken to ensure that confidentiality is maintained with respect to any part of the information that contains names or other identifying information about patients or complainants whose confidentiality was protected by the state medical board when the information was in the board's possession. Measures to ensure confidentiality that may be taken by the court include sealing its records or

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deleting specific information from its records. (6) On a quarterly basis, the board shall prepare a report that documents the disposition of all
cases during the preceding three months. The report shall contain the following information for each case with which the board has completed its activities:
(a) The case number assigned to the complaint or alleged violation; (b) The type of license or certificate to practice, if any, held by the individual against whom the complaint is directed; (c) A description of the allegations contained in the complaint; (d) The disposition of the case. The report shall state how many cases are still pending and shall be prepared in a manner that protects the identity of each person involved in each case. The report shall be a public record under section 149.43 of the Revised Code. (G) If the secretary and supervising member determine both of the following, they may recommend that the board suspend an individual's license or certificate to practice or certificate to recommend without a prior hearing: (1) That there is clear and convincing evidence that an individual has violated division (B) of this section; (2) That the individual's continued practice presents a danger of immediate and serious harm to the public. Written allegations shall be prepared for consideration by the board. The board, upon review of those allegations and by an affirmative vote of not fewer than six of its members, excluding the secretary and supervising member, may suspend a license or certificate without a prior hearing. A telephone conference call may be utilized for reviewing the allegations and taking the vote on the summary suspension. The board shall issue a written order of suspension by certified mail or in person in accordance with section 119.07 of the Revised Code. The order shall not be subject to suspension by the court during pendency of any appeal filed under section 119.12 of the Revised Code. If the individual subject to the summary suspension requests an adjudicatory hearing by the board, the date set for the hearing shall be within fifteen days, but not earlier than seven days, after the individual requests the hearing, unless otherwise agreed to by both the board and the individual. Any summary suspension imposed under this division shall remain in effect, unless reversed on appeal, until a final adjudicative order issued by the board pursuant to this section and Chapter 119. of the Revised Code becomes effective. The board shall issue its final adjudicative order within seventy-five days after completion of its hearing. A failure to issue the order within seventy-five days shall result in dissolution of the summary suspension order but shall not invalidate any subsequent, final adjudicative order. (H) If the board takes action under division (B)(9), (11), or (13) of this section and the judicial finding of guilt, guilty plea, or judicial finding of eligibility for intervention in lieu of conviction is overturned on appeal, upon exhaustion of the criminal appeal, a petition for reconsideration of the order may be filed with the board along with appropriate court documents. Upon receipt of a petition of that nature and supporting court documents, the board shall reinstate the individual's license or certificate to practice. The board may then hold an adjudication under Chapter

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119. of the Revised Code to determine whether the individual committed the act in question. Notice of an opportunity for a hearing shall be given in accordance with Chapter 119. of the Revised Code. If the board finds, pursuant to an adjudication held under this division, that the individual committed the act or if no hearing is requested, the board may order any of the sanctions identified under division (B) of this section.
(I) The license or certificate to practice issued to an individual under this chapter and the individual's practice in this state are automatically suspended as of the date of the individual's second or subsequent plea of guilty to, or judicial finding of guilt of, a violation of section 2919.123 of the Revised Code. In addition, the license or certificate to practice or certificate to recommend issued to an individual under this chapter and the individual's practice in this state are automatically suspended as of the date the individual pleads guilty to, is found by a judge or jury to be guilty of, or is subject to a judicial finding of eligibility for intervention in lieu of conviction in this state or treatment or intervention in lieu of conviction in another jurisdiction for any of the following criminal offenses in this state or a substantially equivalent criminal offense in another jurisdiction: aggravated murder, murder, voluntary manslaughter, felonious assault, kidnapping, rape, sexual battery, gross sexual imposition, aggravated arson, aggravated robbery, or aggravated burglary. Continued practice after suspension shall be considered practicing without a license or certificate.
The board shall notify the individual subject to the suspension by certified mail or in person in accordance with section 119.07 of the Revised Code. If an individual whose license or certificate is automatically suspended under this division fails to make a timely request for an adjudication under Chapter 119. of the Revised Code, the board shall do whichever of the following is applicable:
(1) If the automatic suspension under this division is for a second or subsequent plea of guilty to, or judicial finding of guilt of, a violation of section 2919.123 of the Revised Code, the board shall enter an order suspending the individual's license or certificate to practice for a period of at least one year or, if determined appropriate by the board, imposing a more serious sanction involving the individual's license or certificate to practice.
(2) In all circumstances in which division (I)(1) of this section does not apply, enter a final order permanently revoking the individual's license or certificate to practice.
(J) If the board is required by Chapter 119. of the Revised Code to give notice of an opportunity for a hearing and if the individual subject to the notice does not timely request a hearing in accordance with section 119.07 of the Revised Code, the board is not required to hold a hearing, but may adopt, by an affirmative vote of not fewer than six of its members, a final order that contains the board's findings. In that final order, the board may order any of the sanctions identified under division (A) or (B) of this section.
(K) Any action taken by the board under division (B) of this section resulting in a suspension from practice shall be accompanied by a written statement of the conditions under which the individual's license or certificate to practice may be reinstated. The board shall adopt rules governing conditions to be imposed for reinstatement. Reinstatement of a license or certificate suspended pursuant to division (B) of this section requires an affirmative vote of not fewer than six members of the board.
(L) When the board refuses to grant or issue a license or certificate to practice to an applicant, revokes an individual's license or certificate to practice, refuses to renew an individual's license or

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certificate to practice, or refuses to reinstate an individual's license or certificate to practice, the board may specify that its action is permanent. An individual subject to a permanent action taken by the board is forever thereafter ineligible to hold a license or certificate to practice and the board shall not accept an application for reinstatement of the license or certificate or for issuance of a new license or certificate.
(M) Notwithstanding any other provision of the Revised Code, all of the following apply: (1) The surrender of a license or certificate issued under this chapter shall not be effective unless or until accepted by the board. A telephone conference call may be utilized for acceptance of the surrender of an individual's license or certificate to practice. The telephone conference call shall be considered a special meeting under division (F) of section 121.22 of the Revised Code. Reinstatement of a license or certificate surrendered to the board requires an affirmative vote of not fewer than six members of the board. (2) An application for a license or certificate made under the provisions of this chapter may not be withdrawn without approval of the board. (3) Failure by an individual to renew a license or certificate to practice in accordance with this chapter or a certificate to recommend in accordance with rules adopted under section 4731.301 of the Revised Code shall not remove or limit the board's jurisdiction to take any disciplinary action under this section against the individual. (4) At the request of the board, a license or certificate holder shall immediately surrender to the board a license or certificate that the board has suspended, revoked, or permanently revoked. (N) Sanctions shall not be imposed under division (B)(28) of this section against any person who waives deductibles and copayments as follows: (1) In compliance with the health benefit plan that expressly allows such a practice. Waiver of the deductibles or copayments shall be made only with the full knowledge and consent of the plan purchaser, payer, and third-party administrator. Documentation of the consent shall be made available to the board upon request. (2) For professional services rendered to any other person authorized to practice pursuant to this chapter, to the extent allowed by this chapter and rules adopted by the board. (O) Under the board's investigative duties described in this section and subject to division (F) of this section, the board shall develop and implement a quality intervention program designed to improve through remedial education the clinical and communication skills of individuals authorized under this chapter to practice medicine and surgery, osteopathic medicine and surgery, and podiatric medicine and surgery. In developing and implementing the quality intervention program, the board may do all of the following: (1) Offer in appropriate cases as determined by the board an educational and assessment program pursuant to an investigation the board conducts under this section; (2) Select providers of educational and assessment services, including a quality intervention program panel of case reviewers; (3) Make referrals to educational and assessment service providers and approve individual educational programs recommended by those providers. The board shall monitor the progress of each individual undertaking a recommended individual educational program. (4) Determine what constitutes successful completion of an individual educational program

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and require further monitoring of the individual who completed the program or other action that the board determines to be appropriate;
(5) Adopt rules in accordance with Chapter 119. of the Revised Code to further implement the quality intervention program.
An individual who participates in an individual educational program pursuant to this division shall pay the financial obligations arising from that educational program.
Sec. 5103.11. There is hereby created the foster care and adoption initiatives fund. The fund shall be in the custody of the treasurer of state, but shall not be part of the state treasury. The fund shall consist of moneys collected under section 2919.1912 of the Revised Code. All interest earned on the fund shall be credited to the fund. The purpose of the fund is to provide funding for foster care and adoption services and initiatives. The department of job and family services shall allocate moneys from the fund according to the following distribution:
(A) Fifty per cent of the moneys in the fund shall be used for foster care services and initiatives.
(B) Fifty per cent of the moneys in the fund shall be used for adoption services and initiatives.

SECTION 2. That existing sections 2317.56, 2919.171, 2919.19, 2919.191, 2919.192, 2919.193, and 4731.22 of the Revised Code are hereby repealed.

SECTION 3. The General Assembly hereby declares that it finds, according to contemporary medical research, all of the following:
(A) As many as thirty per cent of natural pregnancies end in spontaneous miscarriage. (B) Less than five per cent of all natural pregnancies end in spontaneous miscarriage after detection of fetal cardiac activity. (C) Over ninety per cent of in vitro pregnancies survive the first trimester if cardiac activity is detected in the gestational sac. (D) Nearly ninety per cent of in vitro pregnancies do not survive the first trimester where cardiac activity is not detected in the gestational sac. (E) Fetal heartbeat, therefore, has become a key medical predictor that an unborn human individual will reach live birth. (F) Cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac. (G) The State of Ohio has a valid interest in protecting the health of the woman. The State of Ohio has a compelling interest in protecting the life of an unborn human individual who may be born. (H) In order to make an informed choice about whether to continue her pregnancy, the pregnant woman has a valid interest in knowing the likelihood of the fetus surviving to full-term birth based upon the presence of cardiac activity. (I) The State of Ohio finds that the detection of a fetal heartbeat can be accomplished through standard medical practices.

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(J) At fertilization, a human being emerges as a whole, genetically distinct, living human organism and needs only the proper environment to fully develop into a human.
(K) Cardiac activity shows that tissues have come together to form organs and the developing central nervous system signals the heart to autonomically beat.
(L) When a heartbeat is visualized at seven weeks or less, ninety-one and one-half per cent will survive the first trimester and ninety-five per cent of those will deliver live- born infants.
(M) After the detection of a fetal heartbeat there is a ninety-five to ninety-eight per cent certainty that the new life will develop full term.
(N) A human being at an embryonic age and a human being at an adult age are naturally the same, with the only biological differences being due to the differences in maturity.

SECTION 4. If any provisions of a section as amended or enacted by this act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable.

SECTION 5. Section 4731.22 of the Revised Code is presented in this act as a composite of the section as amended by both Am. Sub. H.B. 111 and Sub. H.B. 156 of the 132nd General Assembly. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the composite is the resulting version of the section in effect prior to the effective date of the section as presented in this act.

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Speaker ___________________ of the House of Representatives.
President ___________________ of the Senate. Passed ________________________, 20____ Approved ________________________, 20____
Governor.

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The section numbering of law of a general and permanent nature is complete and in conformity with the Revised Code.

Director, Legislative Service Commission.
Filed in the office of the Secretary of State at Columbus, Ohio, on the ____ day of ___________, A. D. 20____.

Secretary of State.

File No. _________

Effective Date ___________________

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EXHIBIT B

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Ohio Department of Health

Mike DeWine, Governor Jon Hustad, Lt. Governor

Amy Acton, M.D., MPH, Director

RE: Director's Order for the Management of Non-essential Surgeries and Procedures throughout Ohio
I, Amy Acton, MD, MPH, Director of the Ohio Department ofHealth (ODH), pursuant to the authority granted to me in R.C. 3701.13 to 'make special orders...for preventing the spread of contagious or infectious diseases" and for the purposes ofpreserving personal protective equipment (PPE) and critical hospital capacity and resources within Ohio, ORDER the following:
1. Effective 5:00p.m. Wednesday March 18,2020, all non-essential or elective surgeries and procedures that utilized PPE should not be conducted.
2. A non-essential surgery is a procedure that can be delayed without undue risk to the current or future health ofa patient. Examples of criteria to consider include:
a. Threat to the patient's life if surgery or procedure is not performed;
b. Threat ofpermanent dysfunction of an extremity or organ system; c. Risk ofmetastasis or progression of staging; or d. Risk ofrapidly worsening to severe symptoms (time sensitive)
3. Eliminate non-essential individuals from surgery/procedure rooms and patient care areas to preserve PPE. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required.
4. Each hospital and outpatient surgery or procedure provider, whether public, private, or nonprofit, shall establish an internal governance structure to ensure the principles outlined above are followed.
5. This action is taken to protect our healthcare workforce during this unprecedented event. This Order shall remain in full force and effect until the State of Emergency declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescitids or modifies this Order.
This Order take into consideration and is consistent with the Ohio Hospital Association's Implementing Guidelines for the Management ofNon-Essential Surgeries and Procedures Throughout Ohio dated March 16,2020.
COVID-19 is a respiratory disease that can result in serious illness or death, is caused by the SARS-CoV2 virus, which is a new strain of coronavirus that had not been previously identified in humans and can easily spread from person to person. The virus is spread between individuals who are in close contact with each other (within about six feet) through respiratory droplets produced when an infected person

246 North High Street Columbus, Ohio 43215 U.S.A.

6141466-3543 www.odh.ohio.gov

The State of Ohio is an Equal Opportunity Employer and Provider of ADA Services.

Exhibit B

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coughs or sneezes. It may be possible that individuals can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose or eyes.
On January 23,2020, the Ohio Department of Health issued a Director's Journal Entry making COVID19 a Class A reportable disease in Ohio.
On January 28, 2020, the Ohio Department of Health hosted the first statewide call with local health departments and healthcare providers regarding COVID-19.
On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization declared the outbreak of COVID-19 a public health emergency ofinternational concern.
On January 31,2020, Health and Human Services Secretary, Alex M. Azar II, declared a public health emergency for the United States to aid the nation's healthcare community in responding to COVID-19.
On February 1, 2020, the Ohio Department of Health issued a statewide Health Alert Network to provide local health departments and healthcare providers with updated guidance for COVID-19 and revised Person Under Investigation (PUI) criteria.
On February 3, 2020, the Ohio Department of Health trained over 140 personnel to staff a call center for COVID-19, in the event it was needed.
On February 5, 2020, the Ohio Department of Health began updating and notifying the media of the number ofPills in Ohio every Tuesday and Thursday.
On February 6, 2020, the Ohio Department of Health updated all agency assistant directors and chiefs of staffon COVID-19 preparedness and status during the Governor's cabinet meeting.
On February 7, 2020, the Ohio Department ofHealth and the Ohio Emergency Management Agency met to conduct advance planning for COVID-19.
On February 13, 2020, the Ohio Department of Health conducted a Pandemic Tabletop Exercise with State agencies to review responsive actions should there be a pandemic in Ohio.
On February 14, 2020, the Ohio Department of Health held a conference call with health professionals across the state. The purpose of the call was to inform and engage the healthcare community in Ohio. Presentations were provided by the Department ofHealth, Hamilton County Public Health, and the Ohio State University.
On February 27, 2020, the Ohio Department of Health and the Ohio Emergency Management Agency briefed the directors ofState agencies during the Governor's cabinet meeting regarding preparedness and the potential activation ofthe Emergency Operations Center.
On February 28, 2020, the "Governor DeWine, Health Director Update COVID-19 Prevention and Preparedness Plan" was sent to a broad range of associations representing healthcare, dental, long-term

Case: 1:19-cv-00360-MRB Doc #: 48-2 Filed: 03/31/20 Page: 4 of 5 PAGEID #: 986

care, K-12 schools, colleges and universities, business, public transit, faith-based organizations, non-profit

On March 2, 2020, the Ohio Department of Heruth activated a Joint Information Center to coordinate COVID-19 communications.

On March 5, 2020, the Ohio Department of Heruth hosted the Governor's Summit on COVID-19 Preparedness, a meeting with the Governor, cabinet agency directors, locru heruth department commissioners, and their staff.

On March 6, 2020, the Ohio Department of Heruth opened a crul center to answer questions from the public regarding COVID-19.

On March 9, 2020, testing by the Department ofHeruth confirmed that three (3)

were positive for

COVID-19 in the State of Ohio. This confirms the presence of a potentiruly dangerous condition which

may affect the heruth, safety and welfare of citizens of Ohio.

On March 9, 2020, the Ohio Emergency Management Agency activated the Emergency Operations Center.

On March 9, 2020, the Governor Declared a State of Emergency in Executive Order 2020-01D.

On March 11, 2020, the head of the World Heruth Organization declared COVID-19 a pandemic.

On March 11, 2020, testing by the Ohio Department of Heruth confirmed that one (1) more patient was positive for COVID-19 in the State of Ohio.

On March 11, 2020, the Ohio

ofHeruth and Veterans Services issued a Joint Directors' Order

to limit access to Ohio nursing homes and similar facilities.

On March 15, 2020, the Ohio Department of Heruth issued a Director's Order to limit access to Ohio's jails and detention facilities.

On March 15, 2020, the Ohio Department ofHeruth issued a Director's Order to limit the sale offood and beverages, liquor, beer and wine to carry-out and delivery only.

On March 15,2020, the CDC issued Interim Guidance for mass gatherings or large community events,

stating that such

that consist of 50 or more people should be cancelled or postponed.

On March 15,2020, the Ohio Department ofHeruth issued a Director's Order closing polling stations.

Multiple areas ofthe United States are experiencing "community spread" ofthe virus that causes COVID19. Community spread, defined as the transmission of an illness for which the source is unknown, means that isolation ofknown areas ofinfection is no longer enough to control spread.

Case: 1:19-cv-00360-MRB Doc #: 48-2 Filed: 03/31/20 Page: 5 of 5 PAGEID #: 987

The CDC reports that people are most contagious when they are most symptomatic (the sickest) however some spread might be possible before people show symptoms although that is not the main way the virus spreads.

Mass gatherings (50 or more persons) increase the risk of community transmission of the virus COVID19.

Accordingly, upon guidance from the U.S. Surgeon General, American College ofSurgeons and numerous other public health experts, I hereby ORDER, beginning at 5:00p.m. Wednesday, March 18, 2020 all non-essential surgeries and procedures are cancelled. A non-essential surgery is a procedure that can be delayed without undue risk to the current or future health of a patient. Examples of criteria to consider include: threat to the patient's life if surgery or procedure is not performed; Threat of permanent dysfunction ofan extremity or organ system; risk ofmetastasis or progression ofstaging; or risk ofrapidly worsening to severe symptoms (time sensitive). Eliminate non-essential individuals from surgery/procedure rooms and patient care areas to preserve PPE. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required. Each hospital and outpatient surgery or procedure provider shall establish an internal governance structure to ensure the principles outlined above are followed. The Order is issued for the purposes of preserving personal protective equipment (PPE) and critical hospital capacity and resources within Ohio. This action is taken to protect our healthcare workforce during this unprecedented event. This der shall remain in full force and effect until the State ofEmergency declared by the Governor no

lo ger e isf \

r: :

Department ofHealth rescinds or modifies this Order.

Y
Am '1\ct n, MD, MPH Director Health

March17, 2020

Case: 1:19-cv-00360-MRB Doc #: 48-3 Filed: 03/31/20 Page: 1 of 2 PAGEID #: 988
EXHIBIT C

FORMS PUBLICATIONS FACQase:M1E:D1I9A-cv-C0O03N6TA0C-MTRB Doc #: 48-3 Filed: 03/31/20 Page: 2 of 2 PAGEID #: 989
How May We Help You?

Media > News Releases > March 2020 > Statement from AG Yost regarding Enforcement of Ohio Department of Health’s Order to Preserve Person
News Releases
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Statement from AG Yost regarding Enforcement of Ohio Department of Health’s Order to Preserve Personal Protective Equipment During a Pandemic Emergency
3/25/2020

(COLUMBUS, Ohio) — The following statement may be attributed to Ohio Attorney General Dave Yost:
“Establishing roles in a crisis is critical. In the current COVID-19 crisis, the Attorney General’s ofﬁce plays a speciﬁc role. We are the prosecutor and the Ohio Department of Health is the police ofﬁcer. My ofﬁce will take quick enforcement action once an investigation is completed by the Department of Health, when facts to support a violation are determined, and a case is forwarded to my ofﬁce. That is the standard protocol.
In Ohio, the Attorney General’s ofﬁce lacks the extensive and explicit investigatory authority to independently take action with regard to this order. That authority lies with the Department of Health as the regulatory agency under Ohio Rev. Code 3701.04 and Ohio Admin. Code 3701-83-06. If the Department of Health determines through an investigation that Dr. Acton’s order was violated by any surgical facility in Ohio, my ofﬁce stands ready to play our role and pursue legal action on behalf of the Ohio Department of Health.
Complaints regarding possible violations of Dr. Acton’s order should be ﬁled with the Ohio Department of Health, as the department serves as the investigatory arm. In this instance, the attorney general plays the role of the prosecutor, not the cop.”
MEDIA CONTACT: Bethany McCorkle: 614-466-1339
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 Case: 1:19-cv-00360-MRB Doc #: 52 Filed: 04/02/20 Page: 1 of 4 PAGEID #: 1021

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Preterm-Cleveland, et al., Plaintiffs, vs.
Attorney General of Ohio, et al., Defendants.

: : : Case No. 1:19-cv-00360 : : Judge Michael R. Barrett : : : : : :

ORDER

This matter is before the Court on the Request for a Stay of the Temporary

Restraining Order by Defendants Attorney General of Ohio, Director of the Ohio

Department of Health, and State Medical Board of Ohio. (Doc. 50). Defendants also

notified the Court of their interlocutory appeal of the Temporary Restraining Order to the

U.S. Court of Appeals for the Sixth Circuit. Id.; see (Docket No. 20-03365, (Doc. 10)

(Defendants-Appellants’ “Combined Emergency Motion for Stay Pending Appeal and

Merits Brief”)).

After a review of Defendants’ brief on appeal to the Sixth Circuit, the Court is

compelled to note that, in their Motion for a Temporary Restraining Order and/or

Preliminary Injunction, Plaintiffs sought to address the lack of clarification by Defendants

as to what procedures Plaintiffs could legally perform, in light of the civil and criminal

consequences of violating the Director’s Order. (Doc. 42). During the two telephonic

conferences that the Court held with the parties on March 30, 2020, Defendants informed

the Court that they would offer no such clarification. Accordingly, in recognizing the

Case: 1:19-cv-00360-MRB Doc #: 52 Filed: 04/02/20 Page: 2 of 4 PAGEID #: 1022
intersection between the emerging crisis throughout the State of Ohio and United States of America due to COVID-19 and Plaintiffs’ patients’ fundamental constitutional rights, the Court issued the Temporary Restraining Order. The Court held that, “[i]f a healthcare provider determines, on a case-by-case basis, that the surgical procedure is medically indicated and cannot be delayed, based on the timing of pre-viability or other medical conditions said procedure is determined legally essential to preserve a woman’s right to constitutionally protected access to abortions.” (Doc. 43, PageID 869). In so holding, the Court noted that the Director’s Order explained that:
2. A non-essential surgery is a procedure that can be delayed without undue risk to the current or future health of a patient. Examples of criteria to consider include:
a. Threat to the patient’s life if surgery or procedure is not performed; b. Threat of permanent dysfunction of an extremity or organ system; c. Risk of metastasis or progression of staging; or d. Risk of rapidly worsening to severe symptoms (time sensitive) (Id., PageID 863) (citing (Doc. 41-1, PageID 698-701)) (emphasis added). A logical reading of the above criteria from the Director’s Order would indicate that a procedure is essential if a postponement results in irreversible conditions. This Court’s Temporary Restraining Order follows that logic. It clarifies when surgical abortions are essential: when they are necessary because of medical reasons (which implicate “undue risk to the current or future health of the patient”) or because of the timing vis-à-vis previability (which the State concedes to be valid). To be sure, the Court agrees with Defendants’ Statement of the Issue in their appellate brief: “Does the Constitution bar States from requiring abortion providers to delay abortions or alter their methods, without denying anyone the right to abortion, when doing so is necessary to preserve equipment needed to combat the spread of a lethal
2

Case: 1:19-cv-00360-MRB Doc #: 52 Filed: 04/02/20 Page: 3 of 4 PAGEID #: 1023
once-in-a-lifetime pandemic?” (Docket No. 20-03365, (Doc. 10, p.3)). The Court agrees with Defendants’ assertions that “[the Director’s Order] also means that doctors must delay surgical abortions that can be delayed without jeopardizing the patient’s ability to secure pre-viability abortion. Doctors remain free to perform surgical abortions necessary for the mother’s health or life, and also surgical abortions that cannot be delayed without jeopardizing the patient’s abortion rights.” (Id., p.4) (emphasis in original). The Court also agrees with Defendants’ assertions that, “the Director’s Order permits surgeries that are necessary rather than elective. That means women can get a surgical abortion when necessary to save their lives or to prevent a serious health complication. It also means that doctors can perform abortions when, given the time constraints, delay means depriving the patient of the ability to abort.” (Id., p.24). Defendants misunderstand the Temporary Restraining Order to the extent they argue that the Court’s holding suggests otherwise.
The Court carefully limited its Temporary Restraining Order to ensure that Plaintiffs, on a case-by-case basis, can provide a surgical abortion, if necessary, to protect the mother’s health or life or to preserve the mother’s exercise of her Fourteenth Amendment right to a pre-viability abortion. (Doc. 43, PageID 868-69). Under a rational reading of the Temporary Restraining Order, nothing in it permits a blanket “on-demand provision of elective abortions,” (Docket No. 20-03365, (Doc. 10, p.5), and Plaintiffs may not perform surgical abortions if they can induce the same abortion medicinally or perform abortions that can be delayed without jeopardizing the mother’s health, life, or ability to exercise her Fourteenth Amendment right to a pre-viability abortion (Doc. 43, PageID 868-69).
3

Case: 1:19-cv-00360-MRB Doc #: 52 Filed: 04/02/20 Page: 4 of 4 PAGEID #: 1024

In light of the foregoing, it is hereby ORDERED that Defendants’ Request for a

Stay of the Court’s Temporary Restraining Order (Doc. 50) is DENIED.

IT IS SO ORDERED.

__/s Michael R. Barrett_____________ Michael R. Barrett, Judge United States District Court

4

 
 Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 1 of 12 PAGEID #: 1037 (1 of 12)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: April 06, 2020

Ms. Brigitte Amiri American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004
Ms. Jennifer L. Branch Gerhardstein & Branch 441 Vine Street Suite 3400 Cincinnati, OH 45202
Ms. Heather L. Buchanan Office of the Attorney General 30 E. Broad Street 16th Floor Columbus, OH 43215
Ms. Rachel Citak Citizens for Community Values P.O. Box 2945 Columbus, OH 43216
Ms. Carrie Y. Flaxman Planned Parenthood Federation of America 1110 Vermont Avenue Suite 300 Washington, DC 20005
Mr. Benjamin Michael Flowers Office of the Attorney General

Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 2 of 12 PAGEID #: 1038 (2 of 12)
30 E. Broad Street 14th Floor Columbus, OH 43215
Mr. Alphonse A. Gerhardstein Gerhardstein & Branch 441 Vine Street Suite 3400 Cincinnati, OH 45202
Ms. Beatrice Jessie Hill Case Western Reserve University School of Law 11075 E. Boulevard Cleveland, OH 44106
Mr. Zachery P. Keller Office of the Attorney General 30 E. Broad Street 16th Floor Columbus, OH 43215
Freda Levenson ACLU of Ohio 4506 Chester Avenue Cleveland, OH 44103
Mr. Stephen Chad Meredith Office of the Attorney General of Kentucky 700 Capitol Avenue Suite 118 Frankfort, KY 40601
Mr. Richard Muniz Planned Parenthood Federation of America 1110 Vermont Avenue Suite 300 Washington, DC 20005
Ms. Elizabeth Watson American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004

Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 3 of 12 PAGEID #: 1039 (3 of 12)

Mr. Edward Lawrence White American Center for Law and Justice 3001 Plymouth Road Suite 203 Ann Arbor, MI 48105
Re: Case No. 20-3365, Preterm-Cleveland, et al v. Attorney General of Ohio, et al Originating Case No. : 1:19-cv-00360
Dear Counsel,
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,

cc: Mr. Richard W. Nagel Enclosure No mandate to issue

s/Roy G. Ford Case Manager Direct Dial No. 513-564-7016

Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 4 of 12 PAGEID #: 1040 (4 of 12)

No. 20-3365
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Apr 06, 2020 DEBORAH S. HUNT, Clerk

PRE-TERM CLEVELAND, et al.,

)

)

Plaintiffs-Appellees,

)

)

v.

)

)

ATTORNEY GENERAL OF OHIO, et al.,

)

)

Defendants-Appellants,

)

)

and

)

)

SUPERVISING MEMBER STATE MEDICAL

)

BOARD OF OHIO, et al.

)

)

Defendants.

)

O R D E R

Before: COLE, Chief Judge; GUY and BUSH, Circuit Judges.
Defendants, the Attorney General of Ohio, the Director of the Ohio Department of Health, and the Secretary of the State Medical Board of Ohio (collectively “the State”) appeal the district court’s order granting plaintiffs’ motion for a temporary restraining order (“TRO”). The plaintiffs are a collection of reproductive healthcare clinics and physicians providing abortion care (“the Providers”). The State moves to stay the TRO pending its appeal and asks that we treat its motion both as a stay motion and as a brief on the merit of its appeal. The Providers oppose a stay and move for dismissal. The State replies.

Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 5 of 12 PAGEID #: 1041
No. 20-3365 -2-

(5 of 12)

On March 17, 2020, in response to the COVID-19 pandemic, the Director of the Ohio

Department of Health issued an order titled “RE: Director’s Order for the Management of Non-

essential Surgeries and Procedures throughout Ohio.” (“Director’s Order”). It directs that all non-

essential or elective surgeries and procedures that utilize personal protective equipment (“PPE”)

should not be conducted. A violation of the order is a second-degree misdemeanor. On March

20, 2020, and March 21, 2020, the Providers received letters from the State warning them that if

they did not immediately stop performing non-essential or elective surgical abortions in

compliance with the Director’s Order, the Department of Health would take appropriate measures.

The Providers sought a TRO, which the district court granted, in part, on March 30, 2020.

As both parties acknowledge, we must first determine whether we have jurisdiction in this

matter. We have jurisdiction of appeals from “[i]nterlocutory orders of the district courts of the

United States . . . granting, continuing, modifying, refusing or dissolving injunctions.” 28 U.S.C.

§ 1292(a)(1). We generally lack jurisdiction to hear an appeal of a district court’s decision to grant

or deny a TRO. “The rationale for this rule is that TROs are of short duration and usually terminate

with a prompt ruling on a preliminary injunction, from which the losing party has an immediate

right of appeal.” Ne. Ohio Coal. for the Homeless & Serv. Employees Int’l Union, Local 1199 v.

Blackwell, 467 F.3d 999, 1005 (6th Cir. 2006). However, the label the district court attaches to its

order is not controlling, and we will “look[]to the nature of the order and the substance of the

proceeding below to determine whether the rationale for denying appeal applies.” Id.

Accordingly, courts have allowed interlocutory appeals of TROs that threaten to inflict

irretrievable harms or consequences before the TRO expires or, rather than preserving the status

quo, act as a mandatory injunction requiring affirmative action. Id. at 1005–06.

Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 6 of 12 PAGEID #: 1042
No. 20-3365 -3-

(6 of 12)

The State argues that, at a minimum, the TRO threatens to inflict irretrievable harm because

the Director’s Order is designed to preserve PPEs for those responding to the COVID-19

pandemic. According to the State, every piece of PPE that the Providers expend on surgical

abortions is one that those most in need of such equipment cannot use to protect themselves and

may ultimately cause people to die. It suggests that the TRO allows Providers to “risk the public

health in order to provide a surgical abortion to anyone who wants one whenever they want it.”

To the contrary, the TRO is narrowly tailored. The district court held

that Plaintiff healthcare providers are to determine if a surgical abortion procedure can be safely postponed during the pre-viability stage to maximize healthcare resources to combat the COVID-19 pandemic. If a healthcare provider determines, on a case-by-case basis, that the surgical procedure is medically indicated and cannot be delayed, based on the timing of pre-viability or other medical conditions, said procedure is deemed legally essential to preserve a woman’s right to constitutionally protected access to abortions.

The district court has clarified in denying a stay of the TRO that the “case-by-case basis”

determination does not permit “blanket ‘on-demand provision of elective abortions,’” and that

“Plaintiffs may not perform surgical abortions if they can induce the same abortion medicinally or

perform abortions that can be delayed without jeopardizing the mother’s health, life, or ability to

exercise her Fourteenth Amendment right to a pre-viability abortion.” With that clarification, we

are not persuaded that the TRO threatens to inflict irretrievable harms or consequences before it

expires, and it requires no affirmative action by the State. Thus, we lack jurisdiction over this

appeal.

One final point bears mentioning. There are multiple forms of surgical abortion, all of

which are typically provided in a clinical setting rather than a hospital. The first uses the aspiration

method, which can be performed up to approximately 15 weeks measured from the first day of the

pregnant woman’s last menstrual cycle. It requires no incision, general anesthesia, or sterile field.

Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 7 of 12 PAGEID #: 1043
No. 20-3365 -4-

(7 of 12)

After 15 weeks, a second method, called the dilation and evacuation technique, is used and,

depending on how far into the pregnancy it is performed, requires more time in the clinic and uses

more PPE. The State argues that the intent of the Director’s Order is to preserve PPEs in the

immediate near-term, “[s]o the fact that the order might require (some) abortionists to use more

PPEs weeks or months from now (in some cases) is really beside the point.” But it is not beside

the point to question whether the Director’s Order deprives a woman of her right to an abortion

during the optimal 15-week period during which the aspiration method can be performed. A

prompt ruling by the district court on the Providers’ motion for a preliminary injunction may shed

further light on this issue.

Accordingly, the Providers’ motion to dismiss is GRANTED. The State’s motion for a

stay is DENIED as moot.

BUSH, J., concurring in part and dissenting in part.

I concur with the Majority’s decision to deny the State’s motion for a stay of the district

court’s temporary restraining order (“TRO”), but I disagree with their conclusion that we do not

have jurisdiction to hear this appeal.

Generally, jurisdiction does not extend to the district court’s decision to grant or deny a

TRO. See Ne. Ohio Coal. for Homeless and Serv. Employees Intern. Union, Local 1199 v.

Blackwell, 467 F.3d 999, 1005 (6th Cir. 2006). However, we have jurisdiction to hear an appeal

of a TRO “if it has the practical effect of an injunction and ‘further[s] the statutory purpose of

permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable,

consequence.’” Id. (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Therefore, we

have jurisdiction if the restraining order “threaten[s] to inflict irretrievable harm before” it

expires. Id. at 1005–06. And, a party may appeal the grant of a restraining order if it “does not

Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 8 of 12 PAGEID #: 1044
No. 20-3365 -5-

(8 of 12)

merely preserve the status quo pending further proceedings, but rather directs action so potent with

consequences so inevitable.” Id. at 1006.

The Director of the Ohio Department of Health suspended all non-essential surgeries as

part of Ohio’s measures to combat the spread of COVID-19, and the TRO makes the Director’s

Order inapplicable to what the State contends is a class of non-essential surgeries. Because, as the

Providers concede, surgical abortions require the use of personal protective equipment (“PPE”),

see Appellees Br. at 6, an entire class of surgical procedures that the State contends are non-

essential are now permitted to proceed notwithstanding the Director’s Order. This arguably

contradicts the Order’s purpose of “reserving personal protective equipment . . . and critical

hospital capacity and resources within Ohio.” R. 48-2 at PageID 984. The State also points out

that, under its interpretation of the Director’s Order, the TRO does not maintain the status quo, but

disrupts it. All other non-essential surgical procedures have been suspended within the

state. According to the State, allowing the Providers a blanket exception from the Director’s Order

would disrupt the status quo and cause significant harm to Ohio’s pandemic response. I conclude,

therefore, that the State has made a sufficient showing of arguable “irretrievable harm” and

disruption of the status quo of the Director’s Order, particularly in light of the time-sensitive nature

of the issue, to give us jurisdiction to review the TRO. See Ne. Ohio Coal. for Homeless, 467 F.3d

at 1005–006.

I understand the State’s concerns about the need for imposing restrictions on non-essential

surgeries to conserve the use of PPE. I also agree with the State that abortion providers are not

entitled to special exemptions unavailable to other doctors in determining which procedures are

essential. See Gonzales v. Carhart, 550 U.S. 124, 163 (2007) (“The law need not give abortion

doctors unfettered choice in the course of their medical practice, nor should it elevate their status

Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 9 of 12 PAGEID #: 1045
No. 20-3365 -6-

(9 of 12)

above other physicians in the medical community.”). However, abortion is a unique medical

procedure under both Ohio and federal law because that procedure must be performed within

twenty-two weeks (i.e., pre-viability) per an Ohio statute and, under the federal constitution,

without undue restrictions on the procedure. No one has the right to “terminate her pregnancy at

whatever time, in whatever way, and for whatever reason she alone chooses.” Roe v. Wade, 410

U.S. 113, 153 (1973). Rather, a woman has a right, before the fetus is viable, not to be unduly

burdened in her decision whether to obtain an abortion. A state imposes an undue burden when it

enacts abortion regulations that have “the purpose” or the “effect of placing a substantial obstacle

in the path of a woman seeking an abortion of a nonviable fetus.” Planned Parenthood of Se. Pa.

v. Casey, 505 U.S. 833, 877 (1992) (plurality). A state may regulate certain abortion procedures,

Gonzales, 550 U.S. at 163, or require women to undertake steps that may delay obtaining an

abortion, Casey, 505 U.S. at 886, so long as the state leaves open reasonably available avenues for

obtaining a pre-viability abortion. The onus is on the Providers to make a “clear showing” that the

Director’s Order violates the Constitution. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).

There is no evidence that the Director’s Order has the purpose of placing a substantial

obstacle for a woman seeking an abortion. Indeed, the Providers do not dispute that the Director’s

Order does not have the purpose of interfering with the right to an abortion. The Director’s Order

does not single out abortions or abortion providers; it applies to “all non-essential or elective

surgeries and procedures[.]” R. 48-2 at PageID 984 (emphasis added). Also, I am not convinced,

based on the record as it stands, and in light of the State’s interpretation of the Director’s Order on

appeal, that the Director’s Order places a substantial obstacle in the path of a woman seeking an

abortion. As the Supreme Court has made clear, states may impose requirements that delay a

woman’s ability to obtain an abortion, so long as they leave open reasonably available avenues for

Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 10 of 12 PAGEID #: 1046 (10 of 12) No. 20-3365 -7-
exercising the right to a pre-viability abortion. See Casey, 505 U.S. at 886. In this regard, the Director’s Order may pass constitutional muster if it is applied as the State on appeal has argued it will be applied. Under the State’s interpretation, doctors are free to prescribe drugs to induce an abortion in accordance with state law. Further, doctors may still perform surgical abortions if the doctor determines that the abortion is necessary to protect the mother’s life or health, or if the doctor determines that any delay will jeopardize the woman’s right to obtain an abortion. The Attorney General has specifically noted that the Director’s Order will be enforced so as to comply with the strictures of Supreme Court precedent. While the Director’s Order may, in some cases, cause a delay in a woman’s ability to obtain an abortion, the State may be able to establish that it has left open sufficient channels such that the Order does not impose an undue burden on a woman’s right to obtain an abortion.
However, the State did not advance its interpretation of the Director’s Order before the district court, despite apparently being given the opportunity in two telephonic conferences to do so. Given these circumstances, and in light of the district court’s clarification of the TRO through its order denying the motion for a stay, I do not believe that the district court abused its discretion in maintaining the status quo to the best extent it could until the preliminary injunction could be decided.
Appellees argue that the balance of harms favors them because of health risks to patients who must delay their abortions under the Director’s Order. There indeed may be increased health risks from delay, but there are undoubtedly health risks from the delay of any medical procedure that may be impacted by the Director’s Order. Appellees also argue that more PPEs may be required to be used if abortions are delayed. The State responds that the issue is timing: nonessential medical procedures are being delayed with the expectation that more PPEs will be

Case: 1:19-cv-00360-MRB Doc #: 57 Filed: 04/07/20 Page: 11 of 12 PAGEID #: 1047 (11 of 12) No. 20-3365 -8-
manufactured and available when the later procedures are done. The district court will need to weigh these competing contentions. Also, it should consider another significant issue raised by the Providers regarding delay, which is the preference of many women for having the abortion while the aspiration method can be performed, rather than the dilation & evacuation procedure that is required for later abortions. All of these issues would benefit from a more developed record and argument below.
Finally, a word about the proportional impact of the Director’s Order on the supply of PPEs: It could be argued that the number of PPEs used in pre-viability surgical abortions is negligible compared to the number of PPEs used in all medical procedures, and therefore, the Director’s Order as applied to abortion providers does not help preserve PPEs in a substantial way. But, if abortion providers are permitted to decide on an ad hoc basis whether a surgical abortion should be performed, who is to say that doctors who perform other medical procedures affected by the Director’s Order could not argue that they should also be permitted to continue performing these procedures as they see fit? This would constitute a serious free-rider problem, the likes of which the Supreme Court has looked upon with disfavor in cases involving state action during pandemics. See Jacobson, 197 U.S. at 35 (“[T]hose who had no faith in vaccination as a mean of preventing the spread of smallpox . . . put in peril the health of the person vaccinated.”).
These issues should be addressed promptly by the district court in ruling on the motion for preliminary injunction. But, given the development of the factual record to date, the State’s delay in articulating its interpretation of the Director’s Order until it had appealed to this court, and the

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district court’s recent clarification of the scope of the TRO, I do not believe that the State has made a sufficient showing to reverse the TRO.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

 
 Case: 1:19-cv-00360-MRB Doc #: 63 Filed: 04/10/20 Page: 1 of 2 PAGEID #: 1192

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Preterm-Cleveland, et al., Plaintiffs, vs.
Attorney General of Ohio, et al., Defendants.

: : : Case No. 1:19-cv-00360 : : Judge Michael R. Barrett : : : : : :

TEMPORARY RESTRAINING ORDER

This matter is before the Court on the March 30, 2020 Temporary Restraining

Order that is set to expire on April 13, 2020 unless dissolved earlier or extended by the

Court. (Doc. 43).

The State Defendants have timely filed their Response in Opposition to Plaintiffs’

Motion for a Preliminary Injunction (Doc. 59) and, per the briefing scheduled agreed to by

the parties, Plaintiffs’ Reply is due on April 15, 2020 (Apr. 1, 2020 Minute Entry). In light

of the agreed upon briefing schedule, the Court finds that good cause exists to extend the

Temporary Restraining Order, which is necessary to preserve the status quo until the

Court rules on the pending Motion for Preliminary Injunction. See FED. R. CIV. P. 65(b)(2).

Accordingly, Defendant; Defendant’s officers, agents, servants, employees, and

attorneys; and those persons in active concert or participation with them who receive

actual notice of the order remain TEMPORARILY RESTRAINED from enforcing the

Director’s Order against Plaintiffs as described in the March 30, 2020 Temporary

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Restraining Order. This Order is effective upon entry and expires fourteen (14) days

thereafter unless dissolved earlier or extended by the Court.

Finally, per the Court’s instructions at the April 1, 2020 telephonic conference and

the parties’ failure to do so as of the date of this Order, the parties are to apprise the Court

regarding their position on oral argument for Plaintiffs’ Motion for a Preliminary Injunction.

(Apr. 1, 2020 Minute Entry).

IT IS SO ORDERED.

_s/ Michael R. Barrett___________ Michael R. Barrett, Judge United States District Court

2

 
 Case: 1:19-cv-00360-MRB Doc #: 78 Filed: 04/23/20 Page: 1 of 38 PAGEID #: 1516

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Preterm-Cleveland, et al., Plaintiffs, vs.
Attorney General of Ohio, et al., Defendants.

: : : Case No. 1:19-cv-00360 : : Judge Michael R. Barrett : : : : : :

ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction.

(Doc. 42). Defendants filed a Response in Opposition (Doc. 59) and Plaintiffs filed a Reply

(Doc. 68).1

I. BACKGROUND

a. The Pending Lawsuit and COVID-19

Plaintiffs are Preterm-Cleveland, Planned Parenthood Southwest Ohio Region

(“PPSOR”), Sharon Liner, M.D., Planned Parenthood of Greater Ohio, Women’s Med

Group Professional Corporation (“WMGPC”), Capital Care Network of Toledo, and

Northeast Ohio Women's Center (collectively, “Plaintiffs”). Plaintiffs are a collection of

reproductive healthcare clinics and physicians providing abortion care throughout Ohio .2

1 The parties’ Notices of Supplemental Authority are also before the Court. (Docs. 47, 49, 56, 75, 76, 77). Additionally, the Court permitted amici curiae to file briefs. (Doc. 73) (in support of Plaintiffs); (Docs. 44-1, 69) (in support of Defendants).
2 While clinics and physicians do not possess a constitutional right to perform abortions, they have standing to assert constitutional challenges on behalf of their patients in the abortion context. See Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908 (6th Cir. 2019).

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Defendants are the Attorney General of Ohio, David Yost, the Director of the Ohio Department of Health (“ODH”), Amy Acton, M.D., M.P.H., the Secretary of the State Medical Board of Ohio, Kim Rothermel, M.D., and the Supervising Member of the State Medical Board of Ohio, Bruce Saferin, D.P.M. (collectively, “State Defendants” or “Defendants”). The remaining Defendants are the Ohio Prosecuting Attorneys for Cuyahoga County, Hamilton County, Franklin County, Richland County, Mahoning County, Montgomery County, Lucas County, and Summit County (collectively, “County Defendants”). Plaintiffs filed their Initial Complaint in this matter in May 2019. (Doc. 1).
On March 9, 2020, the Governor of Ohio, Mike DeWine, declared a State of Emergency via Executive Order in light of COVID-19. (Doc. 59-1, PageID 1098). “COVID19 is a respiratory disease that can result in serious illness or death, is caused by the SARS-CoV-2 virus, which is a new strain of coronavirus that had not been previously identified in humans and can easily spread person to person.” (Id., PageID 1096). “The virus is spread between individuals who are in close contact with each other (within about six feet) through respiratory droplets produced when an infected person coughs or sneezes.” (Id., PageID 1096-97).
COVID-19 has created a crisis for Ohio’s healthcare system and, as part of this crisis, there is a shortage of personal protective equipment (“PPE”) in the State. (Doc. 593, Mark Hurst Decl. ¶¶ 4, 6); (Doc. 59-4, Benjamin Robison Decl. ¶ 3). Generally, “PPE includes items such as masks, gloves, surgical gowns, and other supplies that protect both healthcare workers and patients.” (Doc. 59, PageID 1061). There is an international shortage of PPE and thus Ohio is competing with other states, the federal government, and other countries to obtain sufficient amounts. (Id., ¶ 4). To mitigate the shortage, Ohio
2

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must decrease the use of PPE during the crisis. (Doc. 59-3, Hurst Decl. ¶ 9). All measures taken now to conserve PPE allow more PPE to be available to healthcare workers as the number of COVID-19 infections increases and time for production and manufacturing of new PPE. (Doc. 59-4, Robison Decl. ¶ 6); (Doc. 59-5, Brian Fowler Decl. ¶ 5).
Further, it is unlikely that the Ohio healthcare system can adequately respond to the disease and other healthcare needs if a projected surge of the virus occurs in the coming weeks. (Doc. 59-3, Hurst Decl. ¶ 9); (Doc. 59-4, Robison Decl. ¶ 3). If such a surge occurs, it could overwhelm the capacity of Ohio’s healthcare system. (Doc. 59-3, Hurst Decl. ¶ 6). It is critical that all healthcare personnel have adequate PPE due to symptomatic and asymptomatic patients, as personnel without adequate PPE could unknowingly transmit COVID-19 to other healthy individuals before becoming symptomatic or contract the disease from others that are not showing symptoms. (Id., ¶ 7).
On March 13, 2020, President Donald J. Trump declared a National Emergency in light of COVID-19’s presence in the United States. Proclamation No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020). President Trump explained that “[t]he Federal Government, along with State and local governments, has taken preventive and proactive measures to slow the spread of the virus and treat those affected, including by” “releasing policies to accelerate the acquisition of [PPE].” Id. President Trump emphasized, still, that “[t]he spread of COVID-19 within our Nation's communities threatens to strain our Nation's healthcare systems.” Id.
3

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On March 17, 2020, Defendant Acton issued an order titled “RE: Director’s Order
for the Management of Non-essential Surgeries and Procedures throughout Ohio”
(“Director’s Order”). (Doc. 59-1, PageID 1096-99). She ordered the following:
1. Effective 5:00 p.m. Wednesday March 18, 2020, all non-essential or elective surgeries and procedures that utilized PPE should not be conducted.
2. A non-essential surgery is a procedure that can be delayed without undue risk to the current or future health of a patient. Examples of criteria to consider include:
a. Threat to the patient’s life if surgery or procedure is not performed; b. Threat of permanent dysfunction of an extremity or organ system; c. Risk of metastasis or progression of staging;3 or d. Risk of rapidly worsening to severe symptoms (time sensitive).
3. Eliminate non-essential individuals from surgery/procedure rooms and patient care areas to preserve PPE. Only individuals essential to conducting the surgery or procedure shall be in the surgery or procedure suite or other patient care areas where PPE is required.
4. Each hospital and outpatient surgery or procedure provider, whether public, private, or nonprofit, shall establish an internal governance structure to ensure the principles outlined above are followed.
5. . . . This Order shall remain in full force and effect until the State of Emergency Declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescinds or modifies this Order.
(Id., PageID 1096).
Defendant Acton issued the order to preserve PPE and critical hospital capacity
and resources in Ohio. Id.; (Doc. 59-3, Hurst Decl. ¶ 12); (Doc. 59-4, Robison Decl. ¶ 5);
(Doc. 59-5, Fowler Decl. ¶ 5). A violation of the Director’s Order is a second-degree
misdemeanor. See Ohio Rev. Code. §§ 3701.99(C), 3701.352. The penalty for a second-
degree misdemeanor in Ohio is a fine of no more than $750, or up to ninety-days
3 “Staging” is “the determination of distinct phases or periods in the course of a disease, the life history of an organism, or any biological process.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1760 (32d ed. 2012).
4

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imprisonment, or both. See id. § 2929.24(A)(2). In addition to criminal penalties, if found to have violated the order, a healthcare facility faces the loss of its ambulatory surgical facility license4 and its physicians and other medical professionals face the loss of their medical licenses. (Doc. 48, ¶¶ 11-17).5
The Director’s Order went into effect on March 18, 2020 at 5:00 p.m. (Doc. 59-1, PageID 1096). That same day, Plaintiffs developed, approved, and implemented internal policies to ensure that the principles of the Order are followed at their clinics. (Doc. 42-1, Sharon Liner, M.D., Decl. ¶ 8) (PPSOR); (Doc. 42-2, Chrisse France Decl. ¶ 13, Ex. C) (Preterm-Cleveland); (Doc. 42-3 Adarsh Krishen, M.D., Decl. ¶ 15, Ex. B) (Planned Parenthood of Greater Ohio); (Doc. 42-4, W.M. Martin Haskell, M.D., Decl. ¶ 15, Ex. C) (WMGPC); (Doc. 42-5, David Burkons, M.D., Decl. ¶ 15, Ex. B) (Northeast Ohio Women’s Center). Each policy determined that “surgical abortion constitutes an essential surgery and may continue to be provided under the terms of the [Director’s] Order,” because “a delay in a surgical abortion will negatively affect patient health and safety.” (Doc. 42-1, Liner, Decl. ¶ 11); (Doc. 42-2, France Decl., Ex. C); (Doc. 42-3 Krishen Decl., Ex. B); (Doc. 42-4, Haskell Decl., Ex. C); (Doc. 42-5, Burkons Decl., Ex. B).
On March 20, 2020 and March 21, 2020, Defendant Yost e-mailed letters to Plaintiffs PPSOR, Preterm-Cleveland, and WMGPC stating that “[t]he Ohio Department
4 Ambulatory surgical facilities are free-standing facilities in which outpatient surgery is routinely performed.” Women’s Medical Prof’l Corp. v. Baird, 438 F.3d 595, 599 n.1 (6th Cir. 2006) (citing Ohio Rev. Code § 3702.30(A)(1)). Ambulatory surgical facilities “include facilities providing medical care and services in areas including, but not limited to, cosmetic and laser surgery, plastic surgery, abortion, dermatology, digestive endoscopy, gastroenterology, lithotripsy, urology, and orthopedics.” Id. Ambulatory surgical facilities in Ohio must be licensed. Ohio Rev. Code § 3702.30(E)(1). 5 Defendants Yost, Acton, Rothermel, and Saferin are responsible for enforcing the civil penalties of the Director’s Order. Defendant Yost may also refer possible violations to the County Defendants for criminal prosecution. (Doc. 48 ¶¶ 19-30).
5

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of Health has received a complaint that your facility has been performing or continues to offer to perform surgical abortions, which necessarily involve the use of PPE.” (Doc. 421, Liner Decl. ¶ 13, Ex. F); (Doc. 42-2, France Decl. ¶ 14, Ex. B); (Doc. 42-4, Haskell Decl. ¶ 16, Ex. B). Defendant Yost ordered Plaintiffs “to immediately stop performing nonessential and elective surgical abortions” and warned that, “[i]f you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the [Director’s O]rder, the Department of Health will take all appropriate measures.” Id.
On March 21, 2020, Plaintiffs responded to Defendant Yost confirming their compliance with the Director’s Order and revised their internal policies to clarify that their physicians will determine, on a case-by-case basis, whether a surgical abortion or other procedure constitutes an essential surgery or procedure.6 (Doc. 42-1, Liner Decl. ¶ 14, Ex. B); (Doc. 42-2, France Decl. ¶ 15, Ex. C); (Doc. 42-3, Krishen Decl. ¶ 16, Ex. B); (Doc. 42-4, Haskell Decl. ¶ 17, Ex. C); (Doc. 42-5, Burkons Decl. ¶ 16, Ex. B). The revised policies state that the clinics’ “physicians shall rely on the Director’s Order” in making those determinations. Id. The policies also forbid the performance of non-essential surgeries and procedures that use PPE until the Director’s Order is rescinded or the State of Emergency in Ohio is declared over and require staff to make every effort to preserve PPE during essential surgeries, e.g., limiting the number of people present. Id.
6 “If a physician determines a surgical abortion or other procedure is essential, the physician documents that determination in the patient’s chart.” (Doc. 42-1, Liner Decl. ¶ 14).
6

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On March 22, 2020, Defendant Acton issued the “Director’s Stay at Home Order.”
https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf (last visited Apr. 23,
2020).7 She ordered, inter alia, that:
all individuals currently living within the State of Ohio are ordered to stay at home or at their place of residence except as allowed in this Order. To the extent individuals are using shared or outdoor spaces when outside their residence, they must at all times and as much as reasonably possible, maintain social distancing of at least six feet from any other person, with the exception of family or household members, consistent with the Social Distancing Requirements set forth in this Order. All persons may leave their homes or place of residence only for Essential Activities, Essential Governmental Functions, or to participate in Essential Businesses and Operations, all as defined below.
(Id., ¶ 1). Defendant Acton then defined what she deemed to be “Essential Businesses
and Operations” and included “Religious Entities,” “Media,” and “First amendment
protected speech.” (Id., ¶ 12 (e), (f), (g)).
On March 25, 2020, Defendant Yost issued a Statement regarding the Director’s
Order explaining that
[e]stablishing roles in a crisis is critical. In the current COVID-19 crisis, the Attorney General’s office plays a specific role. We are the prosecutor and the Ohio Department of Health is the police officer. My office will take quick enforcement action once an investigation is completed by the Department of Health, when facts to support a violation are determined, and a case is forwarded to my office. That is the standard protocol.
(Doc. 42-1, Liner Decl., Ex. G). Defendant Yost noted that his “office stands ready to play
our role and pursue legal action on behalf of the Ohio Department of Health.” Id.
The next day, two inspectors from the ODH arrived at Plaintiffs PPSOR, Preterm-
Cleveland, and WMGPC for unannounced inspections and seeking information about the
7 The copy of the Director’s March 22, 2020 Order, found on the ODH’s website, is self-authenticating under Fed. R. Evid. 902, and the Court may take judicial notice of it. See e.g., Oak Ridge Envtl. Peace All. v. Perry, 412 F. Supp. 3d 786, 810 (E.D. Tenn. 2019) (citing Demis v. Sniezek, 558 F.3d 508, 513 n. 2 (6th Cir. 2009) (taking notice of government website)).
7

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clinics’ compliance with the Director’s Order. (Doc. 42-1, Liner Decl. ¶ 17); (Doc. 42-2, France Decl. ¶ 17); (Doc. 42-4, Haskell Decl. ¶ 20). Plaintiffs cooperated with the inspectors. Id. That same day, during their daily televised Coronavirus Update, Defendant Acton and Governor DeWine acknowledged that the ODH was investigating complaints of violations of her March 17, 2020 Order against certain abortion clinics. https://www.ideastream.org/ohio-could-see-up-to-8000-covid-19-cases-per-day-at-peakcoronavirus-update-march-26-2020 (last visited Apr. 23, 2020).8
On March 27, 2020, the ODH inspectors returned for a second day of inspections. (Doc. 42-1, Liner Decl. ¶ 20); (Doc. 42-2, France Decl. ¶ 20); (Doc. 42-4, Haskell Decl. ¶ 23). The inspectors did not inform the clinics whether they had found violations of the Director’s Order, an apparent break with the ODH’s practice of informing these Plaintiffs of inspection results before leaving an inspection. Id. The results of those inspections remain unknown as of the date of this Order. (Doc. 68-2, Liner Supp. Decl. ¶ 15); (Doc. 68-1, France Supp. Decl. ¶ 5); (Doc. 68-4, Haskell Supp. Decl. ¶ 5).
On March 30, 2020—due to the combination of the lack of response from Defendants as to what procedures Plaintiffs could legally perform and the civil and criminal penalties of a violation of the Director’s Order—Plaintiffs filed a Motion to File a Supplemental Complaint and Motion for a TRO and/or Preliminary Injunction. (Docs. 41, 42). The proposed Supplemental Complaint sought to add a constitutional challenge to the Director’s Order as applied to surgical abortion procedures. (Doc. 41-1). The Motion for a TRO and/or Preliminary Injunction requests that the Court temporarily restrain, and
8 The Court may consider these statements. See FED. R. EVID. 801(d)(2) (an opposing party’s statement, made by the party in a representative capacity, offered against an opposing party is not hearsay).
8

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then preliminarily enjoin, Defendants from enforcing the Director’s Order in a way that would ban surgical abortion in Ohio. (Doc. 42).
Pursuant to S.D. Ohio Civ. R. 65.1, the Court held two informal telephone conferences with the parties on March 30, 2020. The Court invited Defendants to clarify the State’s interpretation of the Director’s Order during those conferences. Defendants informed the Court that they would offer no such clarification.
The Court granted Plaintiffs’ Motion to Supplement the Complaint and issued a TRO on March 30, 2020. (Doc. 43). The Court highlighted the novel intersection between the United States Supreme Court (“Supreme Court”) precedent on the Fourteenth Amendment’s guarantee of the right to reproductive freedom and the State’s interest in protecting its citizens during the evolving COVID-19 pandemic. Id. After finding that Plaintiffs satisfied their burden, the Court ordered that Plaintiffs are to determine if a surgical abortion procedure can be safely postponed during the pre-viability stage to conserve PPE and, if so, to postpone. Id. The Court further ordered that, if one of Plaintiffs’ healthcare providers determines, on a case-by-case basis, that the surgical abortion procedure is medically indicated and cannot be delayed—based on the timing of previability or other medical conditions—said procedure is deemed legally essential to preserve a woman’s right to constitutionally protected access to abortion. Id.
Defendants filed an interlocutory appeal of the TRO to the U.S. Court of Appeals for the Sixth Circuit (“Sixth Circuit”) the next day and requested that this Court stay the TRO pending that appeal. (Doc. 50). This Court denied Defendants’ request. (Doc. 52). In so denying, the Court felt obligated to clarify its TRO, as Defendants’ opening brief on appeal contained questionable interpretations of the TRO. See, e.g., (Sixth Circuit Docket
9

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No. 20-03365, (Doc. 10, p.5)) (inaccurately suggesting that the TRO permits Plaintiffs to provide “the on-demand provision of elective abortions”).9 The Court clarified when surgical abortions are essential: when they are necessary on case-by-case determinations because of medical reasons (which implicate “undue risk to the current or future health of the patient” per the Director’s Order) or because of timing vis-à-vis previability (which the State, for the first time on appeal, conceded to be valid). (Doc. 52, PageID 1022).
On April 2, 2020, Defendant Acton amended her Stay at Home Order. https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-At-Home-OrderAmended-04-02-20.pdf (last visited Apr. 23, 2020). “Religious Entities,” “Media,” and “First amendment protected speech” remained “Essential Businesses and Operations.” (Id., ¶ 12 (e), (f), (g)). She amended the exception for “Religious entities” to declare that weddings and funerals are not subject to her Stay at Home Order’s prohibition of gathering of more than ten people. (Id., ¶ 12(e)); see (Id., ¶ 3). She also extended the Stay at Home Order through May 1, 2020. Id.
On April 6, 2020, the Sixth Circuit held that it lacked jurisdiction over the TRO and dismissed Defendants’ appeal. (Doc. 57). The majority noted that:
[t]he State argues that the intent of the Director’s Order is to preserve PPEs in the immediate near-term, “[s]o the fact that the order might require (some) abortionists to use more PPEs weeks or months from now (in some cases) is really beside the point.” But it is not beside the point to question whether the Director’s Order deprives a woman of her right to an abortion during the optimal 15-week period during which the aspiration method can be performed. A prompt ruling by the district court on [Plaintiffs]’ motion for preliminary injunction may she further light on this issue.
9 The clarification appears to be of no avail as Defendants continued to erroneously suggest that the TRO allows Plaintiffs “to risk the public health in order to provide a surgical abortion to anyone who wants one whenever they want it” in their Reply brief. (Sixth Circuit Docket No. 20-03365, (Doc. 16, p.11)).
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(Id., PageID 1043). The judge who concurred in part and dissented in part emphasized that “[a] state may regulate certain abortion procedures or require women to undertake steps that may delay obtaining an abortion, so long as the state leaves open reasonably available avenues for obtaining a pre-viability abortion.” (Id., PageID 1045) (internal citations omitted) (emphasis added). He stressed that Plaintiffs have the burden to establish that the Director’s Order is unconstitutional and “the State may be able to establish that is has left open sufficient channels such that the Order does not impose an undue burden on a women’s right to obtain an abortion.” (Id., PageID 1045-46). Like the majority, he advised that this Court “should consider . . . the preference of many women for having the abortion while the aspiration method can be performed, rather than the dilation & evacuation procedure that is required for later abortions.” (Id., PageID 1047).
After the Sixth Circuit’s ruling, a spokeswoman for Defendant Yost’s Office stated that the ruling permits his office to enforce action against any of Plaintiffs’ physicians who “perform[] a surgical abortion that could have been safely postponed or performed with medication.”10 Kate Smith, Majority of Abortion Services in Ohio Can Continue, Judges Rule, CBS News (Apr. 6, 2020), available at https://www.cbsnews.co m/news/ohio-abortion-majority-services-judge-rules/ (last visited Apr. 23, 2020).
On April 8, 2020, and pursuant to the briefing scheduled agreed to by the parties, Defendants filed their Response in Opposition to Plaintiffs’ Motion for Preliminary Injunction. (Doc. 59). That same day, the ODH issued a “COVID-19 Checklist for Essential Versus Non-Essential Surgeries Responding to COVID-19” to help guide Ohio
10 The Court may consider these statements. See FED. R. EVID. 801(d)(2)(D) (“A statement that meets the following conditions is not hearsay: The statement is offered against an opposing party and was made by the party's agent or employee on a matter within the scope of that relationship and while it existed.”).
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healthcare providers interpret the Director’s Order. https://coronavirus.ohio.gov/wps/port al/gov/covid-19/checklists/english-checklists/essential-versus-non-essential-surgeriescovid-19-checklist (last visited Apr. 23, 2020). The ODH instructs providers to ask:
1. Does postponing the procedure threaten the patient’s life? 2. Could postponing the procedure lead to permanent dysfunction of an extremity or organ system? 3. Is there a risk of metastasis or progression of staging? 4. Is there time sensitivity? Could the patient develop rapidly worsening or severe symptoms without the procedure? Id. If the answer to any of those questions is yes, the ODH instructs that the procedure should go forward. Id. The ODH also notes, inter alia, that: • The health and age of each individual patient and the risk of severe outcomes — to both physical health and mental health — are among factors that should be considered. • For additional guidance, it is appropriate to reach out to professional societies and associations in specific specialty areas. • Decisions remain the responsibility of providers and local healthcare delivery systems. Id. On April 10, 2020, the Court, on a finding of good cause per Federal Rule of Civil Procedure 65(b)(2), extended the TRO in light of the fact that the Order was set to expire before the parties’ agreed-upon filing deadline for Plaintiffs’ Reply. (Doc. 63). Plaintiffs timely filed their Reply. (Doc. 68). b. Abortion in Ohio “[A]bortion is a unique medical procedure under both Ohio and federal law because that procedure must be performed within twenty-two weeks (i.e., pre-viability) per an Ohio
12

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statute11 and, under the federal constitution, without undue restrictions on the procedure.” (Doc. 57, PageID 1045) (Bush, J., concurring in part and dissenting in part).
There are two main methods of abortion: medication abortion and surgical abortion. (Doc. 42-1, Liner Decl. ¶ 22). Medication abortion in Ohio must be preceded by an ultrasound at least twenty-four hours in advance. Ohio Rev. Code §§ 2919.193, 2919.194. Medication abortion involves the patient taking a combination of two pills. (Doc. 42-1, Liner Decl. ¶ 23). The patient takes the first medication, mifepristone, at the clinic and then, typically within one or two days and at home, takes the second medication, misoprostol. Id. After taking the misoprostol, the patient will expel the contents of the pregnancy in a manner similar to a miscarriage. Id. For some patients, medication abortion is contraindicated, e.g., due to an allergy to either of the medications or other medical condition, like a bleeding disorder or low hemoglobin. (Id., ¶ 27).
Surgical abortion does not involve an incision in the patient; rather, it involves the use of suction or instruments, depending on the length of gestation, to safely empty the contents of the uterus. (Id., ¶ 26). There are two methods of surgical abortions: aspiration and dilation and evacuation (“D&E”). (Id., ¶ 26). The aspiration method is used up to approximately 15 weeks LMP, uses dilation of the cervix and suction to empty the uterine contents, and usually takes five to ten minutes. Id. The D&E method is used after 15 weeks LMP, involves dilation of the cervix and instruments used to empty the uterine contents, and lasts longer than the aspiration method. Id. Moreover, beginning at approximately 15 through 17 weeks of gestation, D&E surgical abortions have to be
11 Ohio Rev. Code § 2919.201. Gestational dates are measured from the first day of the patient’s last menstrual period (“LMP”). (Doc. 68-7, Lisa Keder, M.D., M.P.H., Decl. ¶ 10, n.2). A full-term pregnancy is approximately 40 weeks LMP. (Doc. 42-1, Liner Decl. ¶ 31).
13

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performed over two days due to the amount of time required for the patient to dilate. (Doc. 42-1, Liner Decl. ¶ 26); (Doc. 68-2, Liner Supp. Decl. ¶ 10); (Doc. 68-6, Alison Norris, M.D., PH.D., Decl. ¶ 27).
All Plaintiffs provide medication abortion up to ten weeks LMP. (Doc. 48, ¶ 62). Plaintiffs PPSOR, Preterm-Cleveland, Planned Parenthood of Greater Ohio, WMGPC, and Northeast Ohio Women's Center provide surgical abortion up to maximum gestations ranging from 15 weeks and six days LMP up to 21 weeks and 6 days LMP. (Doc. 42-1, Liner Decl. ¶ 4) (PPSOR: 21 weeks 6 days LMP); (Doc. 42-2, France Decl. ¶ 5) (PretermCleveland: 21 weeks 6 days LMP); (Doc. 42-3, Krishen Decl. ¶ 6) (Planned Parenthood of Greater Ohio: 19 weeks 6 days LMP); (Doc. 42-4, Haskell Decl. ¶ 7) (WMGPC: 21 weeks 6 days LMP); (Doc. 42-5, Burkons Decl. ¶ 6) (Northeast Ohio Women’s Center: 15 weeks 6 days LMP).12
There are certain logistical obstacles to obtaining an abortion. (Id. ¶ 33). The patient will need to schedule an appointment, make sure of payment,13 and arrange for transportation, time off of work and possibly childcare14 during appointments. Id. A minor patient, unless emancipated, also must obtain written parental consent or a court order. Ohio Rev. Code § 2919.121. And all patients, regardless of age, must make two in-person
12 According to the latest data available from the ODH, in Ohio in 2018: 55.7% of abortions occurred before nine weeks LMP; 44.3% occurred thereafter; and 56% of abortions were surgical abortions. (Doc. 42-1, Liner Decl. ¶ 28). 13 Ohio law prohibits public insurance, including Medicaid, and insurance purchased on the state exchange from covering abortion care except when a patient’s physical health or life is at risk or when the pregnancy is the result of rape or incest and that rape or incest has been reported to law enforcement. Ohio Rev. Code §§ 9.04, 3901.87; Ohio Admin. Code § 5160-17-01. 14 A majority (61%) of those patients having abortions already have at least one child. (Doc. 48 ¶ 67).
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trips—at least 24 hours apart—to the clinic before they can obtain an abortion. See id. § 2317.56.
c. PPE The Director’s Order does not define PPE. According to Defendants, treating patients with COVID-19 requires face/eye protections, N95 masks and surgical masks, gloves, and gowns. (Doc. 59-3, Hurst Decl. ¶ 6). Plaintiffs generally agree, but provide more specifically that treating patients with COVID-19 requires face shields or goggles, N95 masks (or face masks, but N95 masks are the preferred practice), non-sterile gloves, and isolation gowns.15 (Doc. 68-7, Keder Decl. ¶ 34, n.23). Medication abortion requires the use of non-sterile gloves for the statutorily required preceding ultra-sound, and the process of providing a patient the medications does not involve any PPE. (Doc. 42-1, Liner Decl. ¶ 7); (Doc. 42-2, France Decl. ¶ 9); (Doc. 42-3, Krishen Decl. ¶ 10); (Doc. 42-4, Haskell Decl. ¶ 11); (Doc. 42-5, Burkons Decl. ¶ 10). The use of PPE for surgical abortion varies slightly by Plaintiff. PPSOR uses protective eyewear that can be reused according to CDC guidelines, a surgical mask, non-sterile gloves, and washable16 gowns. (Doc. 42-1, Liner Decl. ¶ 7). PretermCleveland uses reusable protective eyewear, surgical masks, gloves, and hair and shoe coverings. (Doc. 42-2, France Decl. ¶ 8). Planned Parenthood of Greater Ohio uses reusable protective eyewear, surgical masks, gloves, hair and shoe coverings, and
15 Isolation gowns are not the same as surgical gowns, as isolation gowns provide greater protection by covering larger critical zones. Id. 16 Plaintiff PPSOR would only use disposable gowns if it was dealing with a patient who presented with upper respiratory symptoms consistent with COVID-19. (Id., ¶ 35).
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typically reusable gowns. (Doc. 42-3, Krishen Decl. ¶ 10). WMGPC uses reusable protective eyewear, surgical masks, non-sterile gloves, washable gowns, and foot coverings. (Doc. 42-4, Haskell Decl. ¶ 10). Northeast Ohio Women’s Center uses reusable protective eyewear, surgical masks, non-sterile gloves, and typically reusable gowns. (Doc. 42-5, Burkons Decl. ¶ 10).
Surgical abortion does not require the use of a N95 masks and all Plaintiffs, aside from WMGPC, do not use or have N95 masks. (Doc. 42-1, Liner Decl. ¶ 35); (Doc. 42-2, France Decl. ¶ 8); (Doc. 42-3, Krishen Decl. ¶ 11); (Doc. 42-4, Haskell Decl. ¶ 10); (Doc. 42-5, Burkons Decl. ¶ 11); (Doc. 68-6, Norris Decl. ¶ 19); (Doc. 68-7, Keder Decl. ¶ 35). WMGPC explains that it ordered one box of N95 masks before the Director’s Order, but does not use them to provide surgical abortions. (Doc. 68-4, Haskell Supp. Decl. ¶ 7).
Surgical abortion does not require the use of isolation gowns and none of the Plaintiffs appear to use isolation gowns. (Doc. 68-2, Liner Supp. Decl. ¶ 16); (Doc. 68-3, Krishen Supp. Decl. ¶ 6); (Doc. 68-6, Norris Decl. ¶ 19); see (Doc. 42-2, France Decl. ¶ 8); (Doc. 42-4, Haskell Decl. ¶ 10); (Doc. 42-5, Burkons Decl. ¶ 10).
d. Ohio’s “Flattening of the Curve” Defendant Acton’s March 17, 2020 and Stay at Home Orders have slowed the infection rate and lowered the number of COVID-19 infections, i.e., “flattened the curve,” and conserved PPE in Ohio. (Doc. 59-5, Fowler Decl. ¶ 4); (Doc. 68-6, Norris Decl. ¶ 9). The goal behind flattening the curve is to reduce the speed with which new cases of the virus develop; the idea is that, although the same number of people may eventually be infected, the cases of infections will be spread out over time and Ohio’s healthcare system will not be overwhelmed. (Doc. 68-6, Norris Decl. ¶ 9).
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e. Changes at Plaintiffs’ Clinics due to the Director’s Order In addition to Plaintiffs’ creation of and changes to their policies discussed above, Plaintiffs have changed the flow of patient care by screening staff and patients for COVID19 symptoms before they can enter the facility and requiring patients to wait in their cars until their appointment room is available or there is space in their waiting-rooms that complies with the social distancing mandate. (Doc. 42-1, Liner Decl. ¶ 39); (Doc. 42-2, France Decl. ¶ 12); (Doc. 42-4, Krishen Decl. ¶ 14); (Doc. 42-4, Haskell Decl. ¶ 14); (Doc. 42-5, Burkons Decl. ¶ 14). Plaintiffs have stopped allowing support people to accompany patients, unless the patient is a minor. (Doc. 42-1, Liner Decl. ¶ 14); (Doc. 42-2, France Decl. ¶ 11); (Doc. 42-4, Krishen Decl. ¶ 13); (Doc. 42-4, Haskell Decl. ¶ 13); (Doc. 42-5, Burkons Decl. ¶ 13). Plaintiffs have also provided a medication abortion when a patient is eligible for both a medication and surgical abortion, unless surgical abortion is contraindicated for the specific patient. (Doc. 42-1, Liner Decl. ¶ 16); (Doc. 42-2, France Decl. ¶ 15); (Doc. 42-4, Krishen Decl. ¶ 17); (Doc. 42-4, Haskell Decl. ¶ 18); (Doc. 42-5, Burkons Decl. ¶ 17). Plaintiffs’ changes have resulted in a significant drop, 33% to 72% depending on the clinic, in surgical abortions over the last three-weeks when compared to the immediately preceding three-weeks. (Doc. 68-1, France Supp. Decl. ¶ 6) (PretermCleveland: greater than 69% drop); (Doc. 68-2, Liner Supp. Decl. ¶ 6) (PPSOR: 33% drop); (Doc. 68-3, Krishen Supp. Decl. ¶ 5) (Planned Parenthood of Greater Ohio: greater than 56% drop); (Doc. 68-4, Haskell Supp. Decl. ¶ 6) (WMGPC: 72% drop); (Doc. 68-5, Burkons Supp. Decl. ¶ 5) (Northeast Ohio Women’s Center: greater than 65% drop).
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f. Parties’ Arguments The Court is compelled to address three concerns before turning to the merits of the parties’ arguments. First, throughout their Response in Opposition, Defendants cite several newspaper articles. (Doc. 59). There is nothing generally concerning about citing newspaper articles, of course. However, the Court is troubled by Defendants’ characterization of the contents of these articles. For example, Defendants assert that “ . . . healthcare providers have deferred a wide variety of procedures, even life-saving transplants,” after following advice to limit non-essential and elective surgeries to preserve PPE and other medical resources. (Id., PageID 1070-71). Defendants cite a March 25, 2020 article from the Wall Street Journal headlined, “Coronavirus Threat Forces Longer Waits for Some Organ-Transplant Patients.” (Id., PageID 1071, n.27). But, a review of that article’s content, rather than just the headline, reveals that physicians are not delaying kidney transplants solely to conserve PPE and other medical resources. Rather, physicians are delaying kidney transplants, on case-by-case bases, due to shortages of beds, equipment, and staff and, more immediately, due to an inability to test kidney donors and recipients to see if they are infected with COVID-19, the vulnerability of donors and recipients to infection during surgery and recovery, and because recipients must take immune suppressing drugs post-surgery that make them particularly vulnerable to infection. Id. Second, Defendants inaccurately assert that Plaintiffs’ Motion requests carte blanche to perform surgical abortions. (Doc. 59, PageID 1063) (“[T]he Court should reject Plaintiffs’ motion for a preliminary injunction seeking a blanket exception for surgical abortions.”); (Id., PageID 1073) (“Plaintiffs thus argue that all surgical abortions are
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essential and these procedures should be categorically exempt from the Director’s Order.”); (Id., PageID 1075) (“The Sixth Circuit thus rejected Plaintiffs’ argument that every surgical abortion is ‘essential.’”); (Id., PageID 1083) (“Far from supporting their claim for a blanket exception . . .”); (Id., PageID 1085) (“A blanket exemption for all surgical abortions, as Plaintiffs seek . . .”); (Id.) (“An injunction mandating a blanket exemption for surgical abortions is not constitutionally sound.”); (Id., PageID 1089) (“ . . . a far narrower demand than the blanket exemption for all surgical abortions that Plaintiffs seek.”); (Id., PageID 1090) (“Any blanket exception to the Director’s Order that the Court agrees to . . . “). Plaintiffs do not, and have not, made such request to the Court and the constant inaccurate characterization of Plaintiffs’ position is unnecessary and distracting.
Third, the Court notes the fluidity of Defendants’ interpretation of the Director’s Order as applied to Plaintiffs. Defendant Yost’s March 20, 2020 and March 21, 2020 cease-and-desist letters were silent as to Plaintiffs’ patients’ pre-viability constitutional rights. See (Doc. 42-1, Liner Decl. ¶ 13, Ex. F); (Doc. 42-2, France Decl. ¶ 14, Ex. B); (Doc. 42-4, Haskell Decl. ¶ 16, Ex. B). Defendant Yost did not follow up with Plaintiffs’ written responses to those letters. Instead, a week later, the ODH sent investigators to conduct unannounced two-day inspections and the ODH has withheld the results of those inspections for more than three weeks. See (Doc. 68-2, Liner Supp. Decl. ¶ 15); (Doc. 68-1, France Supp. Decl. ¶ 5); (Doc. 68-4, Haskell Supp. Decl. ¶ 5).
At the March 30, 2020 phone conferences with this Court, Defendants declined to state their interpretation of the Director’s Order; rather they elected to reveal their interpretation in their opening appellate brief. (Sixth Circuit Docket No. 20-03365, (Doc. 10)). Defendants now concede, as legally they must, that the following are permitted
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under the Director’s Order, as applied to Plaintiffs: (1) if a patient is eligible for both medication abortion and surgical abortion, the provider must provide a medication abortion unless it is contraindicated for the patient; (2) if delaying the abortion would push the patient past the point of pre-viability, and thus become unable to obtain an abortion, the provider may perform surgical abortion; and (3) if delay may cause harm to the patient’s life or health, the provider may perform the surgical abortion. (Doc. 59, PageID 1062, 1077-78, 1084-85, 1089). The Court is mindful of Plaintiffs’ concern about how Defendants will interpret the Director’s Order on any given day, particularly in light of Defendant Yost’s statement that he is ready to pursue legal action on the ODH’s behalf. (Doc. 42-1, Liner Decl., Ex. G).
Turning to the merits of the parties’ arguments, Plaintiffs request a preliminary injunction preventing Defendants from enforcing and applying the Director’s Order in a manner that bans their patients from exercising their constitutional right to pre-viability abortions. (Docs. 42, 68). They argue that the that burden the Director’s Order places on some of their patients is undue and unconstitutional under the substantive-due-process analysis found in Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). (Docs. 42, 68).
Plaintiffs assert that—without clear and consistent guidance from Defendants or a Court order—they fear that their patients will lose their rights to pre-viability abortion access for an unknown length of time and Defendants will second-guess their case-bycase determinations that a surgical abortion was essential and, thus, fear losing their medical licenses, losing their facility licenses and ability to operate, and being prosecuted. (Doc. 42-1, Liner Decl. ¶ 41); (Doc. 42-2, France Decl. ¶¶ 21, 22); (Krishen Decl. ¶¶ 19,
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20); (Doc. 42-4, Haskell Decl. ¶¶ 23, 24); (Doc. 42-5, Burkons Decl. ¶¶ 19, 20); (Doc. 681, France Supp. Decl. ¶ ¶ 4,5); (Doc. 68-2, Liner Supp. Decl. ¶ 15); (Doc. 68-3, Krishen Supp. Decl. ¶ 4); (Doc. 68-4, Haskell Supp. Decl. ¶ 5); (Doc. 68-5, Burkons Supp. Decl. ¶ 4).
Defendants respond that a preliminary injunction is improper, as the burden placed on Plaintiffs’ patients is merely a “temporary delay of surgical abortion” and that burden is constitutionally permissible. (Doc. 59). Defendants urge the Court to utilize the legal framework regarding states’ emergency powers found in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 23 (1905), rather than the substantive-due-process analysis that Plaintiffs request. Id.17
II. ANALYSIS The purpose of a preliminary injunction is to preserve the status quo prior to entry
of the final order. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). In considering a preliminary injunction, the court considers four elements: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (per curiam) (en banc) (internal quotation marks omitted). “These
17 To the extent that Defendants invite the Court to rely on Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996), abrogated on unrelated grounds by Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the Sixth Circuit has never relied on that case to support an opinion and the Court declines the invitation to extend its holding beyond the context of that case’s facts i.e., when a curfew is imposed in response to a natural disaster. See Robinson v. Marshall, No. 2:19CV365-MHT, 2020 WL 1847128, at *12 (M.D. Ala. Apr. 12, 2020).
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four considerations are factors to be balanced, not prerequisites that must be met.” Kessler v. Hrivnak, No. 3:11-cv-35, 2011 WL 2144599, at *3 (S. D. Ohio May 31, 2011).
a. Likelihood of Success The Director’s Order explains that “[a] non-essential surgery is a procedure that can be delayed without undue risk to the current or future health of a patient” and that examples of criteria to consider include “[t]hreat to the patient’s life if surgery or procedure is not performed, “[t]hreat of permanent dysfunction of an extremity or organ system,” “[r]isk of metastasis or progression of staging,” and “[r]isk of rapidly worsening to severe symptoms (time sensitive).” (Doc. 59-1, PageID 1096) (emphasis added). The ODH’s checklist for implementing that Order states that “decisions remain the responsibility of providers and local healthcare delivery systems.” A logical reading of the Director’s Order and her department’s checklist would indicate that a procedure is essential if a postponement results in irreversible conditions and individual physicians makes those determinations, on case-by-case bases, based on their medical training and judgment.18 The Court agrees that that non-essential surgeries should not be conducted in light of the shortage of PPE and risk of spreading COVID-19 in Ohio. The Court also agrees with Defendants’ concessions that, under the Director’s Order and as applied to Plaintiffs, (1) if a patient is eligible for both medication abortion and surgical abortion, the provider must provide a medication abortion unless it is contraindicated; (2) if delaying the abortion would push the patient past the point of pre-viability, the provider may perform surgical
18 The TRO followed that logic. It held that Plaintiffs’ physicians were to make case-by-case determinations and that surgical abortions are essential when they are necessary because of medical reasons (which implicate “undue risk to the current or future health of the patient” per the Director’s Order) or because of the timing vis-à-vis pre-viability.
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abortion; and (3) if delay may cause harm to the patient’s life or health, the provider may perform the surgical abortion. (Doc. 59, PageID 1062, 1077-78, 1084-85, 1089).
The issues that remain, and why Plaintiffs argue a preliminary injunction is necessary, are what amount of harm to a patient’s health justifies proceeding with a surgical abortion earlier than the legal limit, 21 weeks and 6 days LMP, and who gets to make that determination. The State’s emergency powers analysis found in Jacobson and the substantive-due-process analysis found in Roe and Casey should be applied together in light of the COVID-19 pandemic, the subject-matter of this case, and the holdings of those cases. See Adams & Boyle, P.C. v. Slatery, No. 3:15-cv-00705, slip op. at 4-5 (M.D. Tenn. April 21, 2020); Robinson, 2020 WL 1847128, at *8-9. But see In re Abbott, No. 2050296, 2020 WL 1911216, at *7 (5th Cir. Apr. 20, 2020); In re Rutledge, No. 20-1791, 2020 WL 1933122, at *4 (8th Cir. Apr. 22, 2020).
Jacobson involved the constitutionality of a 1902 Cambridge, Massachusetts regulation, adopted pursuant to state statute, that required the city’s residents to undergo a free smallpox vaccination in an attempt to end a smallpox epidemic. 197 U.S. at 12. The Supreme Court held that the regulation did not violate the Fourteenth Amendment as applied to Mr. Jacobson—an adult who was fit for vaccination, refused to be vaccinated, but stayed in the community—as it was a lawful exercise of the State’s police powers. Id. at 27. The Supreme Court held that, “[u]pon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id.
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Although “Jacobson urges deferential review in times of emergency,” it also “demands that courts enforce the Constitution.” Robinson, 2020 WL 1847128, at *8 (citing Jacobson, 197 U.S. at 28). In that regard, the Jacobson Court explains that,
if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. Jacobson, 197 U.S. at 31 (emphasis omitted). Accord Casey, 505 U.S. at 857 (“[A] State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims.”) (quoting Jacobson, 197 U.S. at 24-30). The Jacobson Court stated that we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination, or that vaccination, by reason of his then condition, would seriously impair his health, or probably cause his death. No such case is here presented. Jacobson, 197 U.S. at 39. “Under Jacobson, therefore, a State's emergency response can still be unlawful if it impinges on a fundamental right in a ‘plain, palpable’ way.” Robinson, 2020 WL 1847128, at *9 (quoting Jacobson, 197 U.S. at 31). Access to abortion is a fundamental right. Hellerstedt, 136 S. Ct. at 2300; Casey, 505 U.S. at 876; Roe, 410 U.S. at 153-54; Women’s Med. Prof’l Corp., 353 F.3d at 443. “And so Jacobson asks courts to protect it, even in times of emergency.” Robinson, 2020 WL 1847128, at *9. The law is well-settled that women possess a fundamental constitutional right of access to abortions. Roe, 410 U.S. at 153-54. Yet the right to terminate a pregnancy is not absolute: “[A] state may regulate abortion before viability as long as it does not impose an ‘undue burden’ on a woman’s right to terminate her pregnancy.” Women’s Med. Prof’l
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Corp. v. Taft, 353 F.3d 436, 443 (6th Cir. 2003) (quoting Casey, 505 U.S. at 876) (emphasis added)). “[T]here ‘exists’ an ‘undue burden’ on a woman's right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016) (quoting Casey, 505 U.S. at 878 (emphasis added in Hellerstedt)). “Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2298.
i. Burdens the Director’s Order Imposes on Abortion Access A delay in surgical abortion could cause a substantial risk of serious harm or serious harm to a patient’s health because delaying surgical abortion increases risks associated with abortion. Although abortion is a safe medical procedure, typically with any complications successfully managed in an outpatient setting rather than an emergency room, the health risks associated with abortion increase as gestational age increases. (Doc. 42-1, Liner Decl. ¶ ¶ 22, 32); (Doc. 68-6, Norris Decl. ¶ 23); (Doc. 68-7, Keder Decl. ¶ 38). With respect to the D&E method, the method used if a provider delays an abortion until the legal limit, “the risk of injuring the cervix or uterus is greater than with a first-trimester aspiration abortion” because the D&E method requires the use of instruments. (Doc. 68-2, Liner Supp. Decl. ¶ 11). D&E procedures performed after 18 weeks also include greater risks of infection, extramural delivery, digoxin toxicity, cardiac distress, rupture of membranes, damage to maternal vessel, bleeding, and hemorrhage. (Id., ¶ 12). Additionally, “[a]s the number of weeks increases, the
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invasiveness of the required procedure and the need for deeper levels of sedation also increase, which carries greater risk to the patient.” (Doc. 68-7, Keder Decl. ¶ 40).
Moreover, and despite the fact that abortion is generally a safe procedure with a low mortality rate, the risks of mortality associated with abortion increase as gestational age increases. (Doc. 68-6, Norris Decl. ¶ 25); (Doc. 68-7, Keder Decl. ¶ 38). “The mortality risk at 14-17 weeks is more than eight times greater than at eight weeks or less and more than 22 times greater at or after 18 weeks” and “[d]elaying an abortion by a week in the second trimester significantly increases the mortality risk.” (Doc. 68-7, Keder Decl. ¶ 38). Although the mortality risk associated with abortion is low, the risk of death increases 38% each week. Id.
A delay in surgical abortions could also cause a substantial risk of serious harm or serious harm to a patient’s health because delaying abortions would force women to remain pregnant until the viability limit and that increases the risk that women will experience pregnancy complications. If a provider delays an abortion until the viability limit, many women seeking abortions will remain pregnant for as long as three months— up to nearly 22 weeks of pregnancy. (Doc. 68-7, Keder Decl. ¶ 10). Between 10 weeks and 22 weeks, pregnant women are more prone to shortness of breath, blood clots, nausea and vomiting, dehydration, hypertension, urinary tract infections, and anemia. (Id., ¶¶ 12-13). Pregnancy may also aggravate a preexisting health condition, such as high blood pressure, diabetes, kidney disease, autoimmune disorders, and asthma. (Id., ¶ 14).
In addition to the increased health risks associated with a delayed surgical abortion, Ohio women seeking abortion care face the logistical obstacles to obtaining that care. These include scheduling an appointment, ensuring payment, and arranging
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transportation, time off work, and possible childcare, and perhaps doing each of these things twice due to Ohio statutes. The COVID-19 pandemic will likely exacerbate these obstacles in light of the resulting work disruptions and potential resultant lost income, limited public transit availability, and the closing of schools and childcare facilities. (Doc. 42-1, Liner Decl. ¶¶ 30, 33, 34); (Doc. 68-6, Norris Decl. ¶ 38).
If all, or nearly all, surgical abortions are delayed until the viability limit, Plaintiffs’ facilities could be overwhelmed, and they will be unable to accommodate all of their patients for the required two-day D&E procedures. (Doc. 68-2, Liner Supp. Decl. ¶ 14); (Doc. 68-3, Krishen Supp. Decl. ¶ 8); (Doc. 68-4, Haskell Supp. Decl. ¶ 8). If Plaintiffs are unable to accommodate all patients required to undergo a two-day D&E procedure, patients will be unable to obtain an abortion entirely. Id. Complicating matters, not all Plaintiffs provide D&E abortions up to the viability limit in Ohio, and roughly half of women in Ohio already live in a county with no abortion clinic. (Doc. 42-3, Krishen Decl. ¶¶ 6, 9) (Planned Parenthood of Greater Ohio); (Doc. 42-5, Burkons Decl. ¶ 6) (Northeast Ohio Women’s Center); (Doc. 68-6, Norris Decl. ¶ 32). If all, or nearly all, surgical abortions are delayed until the viability limit, some women will necessarily have to travel longer distances inside of Ohio to receive abortion care. Specifically, those women in and around East Columbus and Cuyahoga Falls would be required to travel to Cincinnati, Dayton, or Cleveland for abortion care, at least twice, or travel out of the state.
Those patients who are able to obtain out-of-state abortion care and do so will face all of the above-mentioned logistical obstacles to obtaining abortion care. (Doc. 42-1, Liner Decl. ¶ 44); (Doc. 68-6, Norris Decl. ¶ 33); (Doc. 68-7, Keder Decl. ¶ 44). And, having women travel to other states to obtain abortion care is “highly undesirable from a
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public health perspective, as those women also face the risk of increased exposure to COVID-19 due to their travel.” (Doc. 68-6, Norris Decl. ¶ 33). The option to travel to another state to obtain abortion care during a pandemic is not a reasonably available avenue or sufficient channel for Ohio women to obtain pre-viability abortions.
Defendant Acton’s March 17, 2020 and Stay at Home Orders have worked to flatten the curve. (Doc. 59-5, Fowler Decl. ¶¶ 4-5); (Doc. 68-6, Norris Decl., ¶ 13). “[F]latter curves are longer curves” though, and mitigation “measures will continue to be in place for weeks (most conservatively), and more likely, months to come.” (Id., ¶ 11). “Projections to understand when the pandemic will end remain extremely complicated and utterly uncertain, as they depend on unknown future societal decisions (such as how long social distancing will be maintained, and by whom) and as-yet-unknown disease factors (such as how many people were infected with SARS-CoV-2 and have now recovered, and how long immunity after infection will last).” (Id., ¶ 36). Ohioans are in a long race in the fight against COVID-19 and return to normalcy and, unlike marathons or other long-distance events, this race is comprised of a wholly unknown distance. (Id., ¶¶ 11, 36).
As a result, Plaintiffs, indeed, all physicians in Ohio, face the reality that the Director’s Order could remain in place for a long time. Appropriately, Plaintiffs’ amended policies note that their physicians should consider that the Ambulatory Surgery Center Association’s COVID-19 guidance “states that consideration of whether delay of a surgery is appropriate must account for risk to the patient of delay, ‘including the expectation that a delay of 6-8 weeks or more may be required to emerge from an environment in which COVID-19 is less prevalent.’” (Doc. 42-1, Liner Decl. ¶ 14, Ex. C, Ex. E); (Doc. 42-2,
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France Decl. ¶ 15, Ex. C); (Doc. 42-3, Krishen Decl. ¶ 16, Ex. B); (Doc. 42-4, Haskell Decl. ¶ 17, Ex. C); (Doc. 42-5, Burkons Decl. ¶ 16, Ex. B).
Defendants concede that delaying surgical abortion imposes some degree of harm on Plaintiffs’ patients. (Doc. 59, PageID 1077, 1089). Defendants assert, however, that “Plaintiffs have not shown that this delay is anymore harmful than the delay than [sic] other Ohioans are experiencing” and “women seeking abortions are being treated no differently than anyone seeking Lasik, a face-lift, or any other non-essential medical procedure at this time.” (Id., PageID 1084, 1089). Defendants’ false equivalence between a woman seeking pre-viability abortion care during the COVID-19 pandemic and a woman seeking a face-lift during the COVID-19 pandemic ignores well-settled Supreme Court precedent on the Fourteenth Amendment’s guarantee of the right to reproductive freedom. The Court questions if a more appropriate comparison is between a woman seeking pre-viability abortion care during the COVID-19 pandemic and a woman who the Jacobson Court contemplated could prove that Cambridge’s compulsory smallpox vaccine, by reason of her condition, would seriously impair her health. See Jacobson, 197 U.S. at 39.
ii. Benefits that Director’s Order Confers in Ohio The primary benefit of the Director’s Order is PPE preservation in the State. See (Doc. 59-1, PageID 1096). The overlapping PPE used to treat a patient with COVID-19 and provide a patient abortion care are non-sterile gloves, surgical masks, and disposable surgical gowns, as healthcare workers use different protective eyewear (face shields and goggles versus reusable eyewear after it is cleaned per CDC guidelines), masks (N95 versus surgical), and gowns (isolation versus surgical) during the two treatments.
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Compare (Doc. 59-3, Hurst Decl. ¶ 6), with (Doc. 42-1, Liner Decl. ¶¶ 7, 35); (Doc. 42-2, France Decl. ¶¶ 8, 9); (Doc. 42-3, Krishen Decl. ¶¶ 10-11); (Doc. 42-4, Haskell Decl. ¶¶ 10-11); (Doc. 42-5, Burkons Decl. ¶¶ 10-11); (Doc. 68-2, Liner Supp. Decl. ¶ 16); (Doc. 68-3, Krishen Supp. Decl. ¶ 6); (Doc. 68-4, Haskell Supp. Decl. ¶ 7); (Doc. 68-6, Norris Decl. ¶ 19); (Doc. 68-7, Keder Decl. ¶¶ 34 35).
The policies that Plaintiffs adopted to conform with the Director’s Order have resulted in a significant drop, 33% to 72%, in surgical abortions over the last three-weeks when compared to the immediately preceding three-weeks. (Doc. 68-1, France Supp. Decl. ¶ 6) (Preterm-Cleveland: greater than 69% drop); (Doc. 68-2, Liner Supp. Decl. ¶ 6) (PPSOR: 33% drop); (Doc. 68-3, Krishen Supp. Decl. ¶ 5) (Planned Parenthood of Greater Ohio: greater than 56% drop); (Doc. 68-4, Haskell Supp. Decl. ¶ 6) (WMGPC: 72% drop); (Doc. 68-5, Burkons Supp. Decl. ¶ 5) (Northeast Ohio Women’s Center: greater than 65% drop). Plaintiffs are preserving PPE in light of the significant decrease in surgical abortions procedures at their clinics. Plaintiffs are also preserving PPE due to their policies limiting the number of people in all procedures to only those who are required. (Doc. 42-1, Liner Decl. ¶ 14, Ex. B); (Doc. 42-2, France Decl. ¶ 15, Ex. C); (Doc. 42-3, Krishen Decl. ¶ 16, Ex. B); (Doc. 42-4, Haskell Decl. ¶ 17, Ex. C); (Doc. 42-5, Burkons Decl. ¶ 16, Ex. B).
Delaying abortion services until the legal limit will not conserve PPE, as D&E abortions require more PPE due to the nature of the procedure, described above, and the fact that the procedure typically occurs over two days, thus requiring two sets of PPE to be used. (Doc. 68-6, Norris Decl. ¶ 28). “[D]elaying abortions so patients have to obtain more technically complicated, riskier procedures later in pregnancy will result in more
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PPE use and may result in more patients needing hospital-based or other care utilizing PPE than if they had obtained an earlier abortion.” (Doc. 68-7, Keder Decl. ¶ 11). Defendants appear to concede that Plaintiffs might have to use more PPEs in the upcoming weeks and months. (Sixth Circuit Docket No. 20-03365, (Doc. 16, p.4-5) (“So the fact that the order might require (some) abortionists to use more PPEs weeks or months from now (in some cases) is really beside the point.”).
Patients who are waiting to obtain an abortion at the viability limit will remain users of the healthcare system as long as they are pregnant and will thus require PPE during any healthcare visits that are not conducted via telemedicine. (Doc. 42-1, Liner Decl. ¶ 37); (Doc. 68-7, Keder Decl. ¶ 27). Likewise, “requiring patients to remain pregnant longer than necessary increases the risk of pregnancy-related health conditions, which are more likely to require treatment in a hospital setting and more extensive use of PPE than surgical abortion.” (Doc. 68-7, Keder Decl. ¶¶ 11, 16).
The Sixth Circuit agreed that the time restraints that the Director’s Order places on Plaintiffs is an important factor in this analysis. (Doc. 57, PageID 1043) (“But it is not beside the point to question whether the Director’s Order deprives a woman of her right to an abortion during the optimal 15-week period during which the aspiration method can be performed.”); (Id., PageID 1046-47) (urging this Court to weigh the argument that more PPEs will be required if abortions are delayed until the legal limit with the argument that procedures are being delayed with the expectation that more PPEs will be manufactured and available later for those delayed procedures) (Bush, J., concurring in part and dissenting in part). In response to the Sixth Circuit’s instructions, Plaintiffs presented the foregoing evidence as to their PPE conservation. In contrast, Defendants provided no
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evidence regarding Ohio’s PPE production and manufacturing efforts such that the Court is convinced that, per Defendants’ logic, PPE is or will be available for those surgical abortion procedures that have been or will be delayed.
Defendants present another shortcoming in response to the Sixth Circuit’s direction to “consider . . . the preference of many women for having the abortion while the aspirational method can be performed, rather than the dilation and evacuation procedure.” (Id., PageID 1047) (Bush, J., concurring in part and dissenting in part). As stated above, the aspiration method is safer than the D&E method because it occurs in earlier gestational weeks and involves no instruments. The aspiration method also uses less PPE than the D&E method because it lasts five to ten minutes instead of, possibly, two days. (Doc. 42-1, Line Decl. ¶ 43); cf. (Doc. 68-8, Craig McKinney, M.D., Decl. ¶ 12) (“I [a general surgeon] factor the potential use of PPE and hospital resources into my decision about whether a particular surgery is essential. This may mean performing a less complex procedure today in order to avoid performing a more complex, risky, and timeintensive procedure later, which might involve more PPE and more staff.”).
The second benefit of, and purpose for, the Director’s Order is preservation of hospital capacity and resources in Ohio. (Doc. 59-1, PageID 1096). However, nearly all abortions in Ohio are provided in outpatient ambulatory surgical facilities, like Plaintiffs, and not hospitals. (Doc. 758). And, as noted, abortion is generally a safe medical procedure and any complications that do occur can typically be handled in an outpatient setting rather than an emergency room. (Doc. 42-1, Liner Decl. ¶ ¶ 22).
Defendants argue another benefit of the Director’s Order is that “[d]elay of certain abortions will decrease personal interaction and contact, and prevent further viral spread.”
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(Doc. 59, PageID 1083). It has not escaped the Court’s attention that Defendant Acton’s Stay at Home Order provides exceptions for Ohioans exercising their First Amendment rights to freedom of religion, the press, and speech, but provides no such exception for Ohioans exercising their fundamental Fourteenth Amendment rights at issue here, despite the fact that those exercising First Amendment rights could also increase personal interaction, contact, and further viral spread.
For all of the reasons detailed above, the Court finds that Plaintiffs have established that enforcement of the Director’s Order will likely result in an unconstitutional deprivation of their patients’ Fourteenth Amendment rights because enforcement will have the effect of placing a substantial obstacle in the path of patients seeking pre-viability abortions, thus creating an undue burden on abortion access. See Casey, 505 U.S. at 876. The Court also finds that Plaintiffs have established that this undue burden is likely to effect “a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. This factor, then, weighs in Plaintiffs’ favor.
b. Irreparable Harm “[A] plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights.” Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002); accord Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of [constitutional] freedoms . . . unquestionably constitutes irreparable injury.”). Inasmuch as this Court has determined that the Director’s Order likely places an undue burden on a woman’s right to choose a pre-viability abortion, and thus violates her right to privacy guaranteed by the Fourteenth
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Amendment, the Court further determines that its enforcement would, per se, inflict irreparable harm. This second factor also weighs in favor of Plaintiffs.
Moreover, Defendant Yost may refer possible violations of the Director’s Order to the County Defendants for criminal prosecution. (Doc. 48 ¶¶ 19-30). Notwithstanding Defendants’ concessions, Defendants have warned Plaintiffs, inspected Plaintiffs’ facilities and withheld the results of those inspections, and changed interpretations of the Director’s Order as applied to Plaintiffs many times. “In this environment, a provider might reasonably fear that prosecutions under the medical restrictions will proceed despite the defendants' on-the-record interpretations.” Robinson, 2020 WL 1847128, at *14. Plaintiffs reasonably fear prosecution under the Director’s Order. (Doc. 42-1, Liner Decl. ¶ 41); (Doc. 42-2, France Decl. ¶¶ 21, 22); (Krishen Decl. ¶¶ 19, 20); (Doc. 42-4, Haskell Decl. ¶¶ 23, 24); (Doc. 42-5, Burkons Decl. ¶¶ 19, 20); (Doc. 68-1, France Supp. Decl. ¶ ¶ 4,5); (Doc. 68-2, Liner Supp. Decl. ¶ 15); (Doc. 68-3, Krishen Supp. Decl. ¶ 4); (Doc. 68-4, Haskell Supp. Decl. ¶ 5); (Doc. 68-5, Burkons Supp. Decl. ¶ 4).
“But to proceed with lawful abortions, providers must be confident that their exercise of reasonable medical judgment will not be met with unconstitutional or bad-faith prosecution.” Robinson, 2020 WL 1847128, at *14 (emphasis in original). “[P]hysicians acting lawfully cannot be left to the tender mercies of a prosecutor's discretion and the vagaries of a jury's decision or wrongly deterred from performing lawful procedures in the first place.” Id. (internal citations and quotations omitted); cf. Colautti v. Franklin, 439 U.S. 379, 396 (1979) (“The prospect of such disagreement [about the timing of viability for a particular fetus], in conjunction with a statute imposing strict civil and criminal liability for an erroneous determination . . . , could have a profound chilling effect on the willingness
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of physicians to perform abortions near the point of viability in the manner indicated by their best medical judgment.”).
Plaintiffs ask for their case-by-case determinations regarding the essential nature of an abortion procedure to be treated the same as other Ohio healthcare professionals’ determinations regarding the essential nature of other procedures. (Doc. 68, PageID 1235). A gynecologist in Ohio explains that she has determined—using her professional judgment and guidance from the American Society for Colposcopy and Cervical Pathology—that procedures used to remove abnormal cells that may cause cervical cancer should sometimes proceed under the Director’s Order based on her patients’ specific needs. (Doc. 68-7, Keder Decl. ¶ 33). Similarly, a general surgeon in Ohio explains that—using his medical training and judgment and consultation with his hospital’s Operating Room Director and nurse anesthetists—he determined that surgery to remove a patient’s gall bladder, “[d]ue to the risk of the patient’s condition worsening and the risk that a more complex surgical procedure would be required if the surgery were delayed,” should proceed under the Director’s Order. (Doc. 68-8, McKinney Decl. ¶ 9).
There is no record evidence that Defendants have warned, inspected, and secondguessed the judgment of any physicians during the COVID-19 pandemic other than Plaintiffs’ physicians.19 See (Doc. 68-7, Keder Decl. ¶ 32) (“As a member of my facility’s operating room committee and of our Surgical Executive Committee, I am unaware of any surgical procedures that have been specifically forbidden by the State. Nor am I aware of the state second-guessing the considered judgment of physicians who have determined
19 During one of the March 30, 2020 phone conferences, Defendants stated that they received one complaint about one urologist, but did not and have not provided any additional information about that complaint.
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a surgery or procedure essential” other than Defendants’ second-guessing Plaintiffs’ judgment).
Plaintiffs establish that they are at substantial risk of prosecution without an injunction. Plaintiffs’ physicians—like all physicians—must use their medical training, medical experience, patients’ individual physical and mental considerations, relationships with their patients, and guidance from professional organizations to make individualized, case-by-case determinations regarding whether an abortion procedure is essential. Cf. (Doc. 68-6, Norris Decl. ¶ 12); (Doc. 68-7, Keder Decl. ¶ 31); (Doc. 68-8, McKinney Decl. ¶ 8). Therefore, in response to the remaining issue of who gets to make the determination of what amount of harm to a patient’s health justifies proceeding with a surgical abortion earlier than the legal limit, the Court concludes that the patient’s physician does. This holding is consistent with the ODH’s COVID-19 Checklist’s instruction that “[d]ecisions remain the responsibility of providers and local healthcare delivery systems.”
c. Harm to Others and Public Interest Plaintiffs have established that, absent a court order, some women in Ohio would likely face substantial obstacles that would make accessing abortion care very difficult. Plaintiffs establish “a meaningful risk of unwarranted prosecutions that deter abortion providers and, in turn, create [another] substantial obstacle for women seeking abortions.” Robinson, 2020 WL 1847128, at *15. Finally, Plaintiffs have also established that delaying abortion services will likely do little to preserve PPE and hospital capacity and resources in Ohio. Hence, the Court finds that this factor, the balance of the hardships, weighs in Plaintiffs’ favor.
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Finally, “it is always in the public interest to prevent the violation of a party's constitutional rights.” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 690 (6th Cir. 2014). III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiffs’20 Motion for a Preliminary Injunction (Doc. 42) is GRANTED. It is ORDERED that:
• If a healthcare provider determines, on a case-by-case basis, that the surgical procedure is medically indicated and cannot be delayed, based on the timing of pre-viability or other medical conditions, said procedure is deemed legally essential to preserve a woman’s right to constitutionally protected access to abortions.
• The State and County Defendants; the State and County Defendants’ officers, agents, servants, employees, and attorneys; and those persons in active concert or participation with them who receive actual notice of the order are PRELIMINARILY ENJOINED from applying and enforcing the Director’s March 17, 2020 Order against Plaintiffs’ physicians in such a way as to prohibit those physicians from making case-by-case determinations that a surgical abortion is essential when the procedure is necessary because of the timing visà-vis pre-viability; to protect the patient’s health or life; and due to medical reasons (which implicate undue risk to the current or future health of the patient and the gestational age of the fetus, as determined by the physician, as it relates to the increased risk of the procedure as the pregnancy progresses).
20 Plaintiff Capital Care Network of Toledo did not participate in the Motion for a Preliminary Injunction and, accordingly, is not included in this Order. (Docs. 42, 68).
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• The bond requirement set forth in Federal Rule of Civil Procedure 65(c) is

WAIVED. See Molton Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th

Cir. 1995).

• Plaintiffs appear to have filed their Motion for a TRO and/or Preliminary Injunction

twice. Compare (Doc. 40), with (Doc. 42). The Clerk of Court is DIRECTED to

STRIKE (Doc. 40) from the Court’s docket in this matter.

• Plaintiffs’ Motion to Clarify the TRO (Doc. 54) is DENIED as moot.

IT IS SO ORDERED.

_s/ Michael R. Barrett_____ Michael R. Barrett, Judge United States District Court

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