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 

WOMEN’S MED GROUP 

PROFESSIONAL CORPORATION 

C/O Gerhardstein & Branch, LPA 

441 Vine Street, Suite 3400 

Cincinnati, OH 45202 

ROSLYN KADE, M.D. 

C/O Gerhardstein & Branch, LPA 

441 Vine Street, Suite 3400 

Cincinnati, OH 45202 

PLANNED PARENTHOOD 

GREATER OHIO 

C/O Melissa Cohen

Planned Parenthood Federation of America 

123 William Street, Floor 9 

New York, NY 10038 

Plaintiffs, 

vs. 

LANCE HIMES 

Director, Ohio Department of Health 

246 N. High Street 

Columbus, OH 43215 

JOSEPH T. DETERS 

Hamilton County Prosecutor 

230 E. Ninth Street, Suite 4000 

Cincinnati, OH 45202

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Case No. 1:18-cv-109 

Judge: 

VERIFIED COMPLAINT FOR 

DECLARATORY AND INJUNCTIVE 

RELIEF 

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MICHAEL C. O’MALLEY 

Cuyahoga County Prosecutor 

Justice Center Bld. Floor 8th and 9th 

1200 Ontario Street 

Cleveland, Ohio 44113 

MAT HECK, JR. 

Montgomery County Prosecutor 

301 W. Third St. 

P.O. Box 972 

Dayton, OH 45402 

RON O’BRIEN 

Franklin County Prosecutor 

373 S. High Street, 14th Floor Columbus 

OH 43215 

KIM G. ROTHERMEL, M.D. 

Secretary, State Medical Board of Ohio 

30 East Broad Street, 3rd Floor 

Columbus, Ohio 43215 

BRUCE R. SAFERIN, D.P.M. 

Supervising Member, State Medical 

Board of Ohio

30 East Broad Street, 3rd Floor 

Columbus, Ohio 43215 

Defendants. 

 

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I. PRELIMINARY STATEMENT 

1. This civil rights case pursuant to 42 U.S.C. § 1983 challenges Ohio House Bill 

214 of the 132nd General Assembly (“H.B. 214” or “the Act”), which is Ohio’s latest attempt to 

prevent women from exercising their constitutionally protected right to abortion. 

2. H.B. 214 was signed into law by Governor John Kasich on December 22, 2017, 

with an effective date of March 22, 2018. 

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3. H.B. 214 criminalizes performing an abortion if the person performing the 

abortion knows that one reason for the woman’s decision to terminate her pregnancy is a fetal 

indication of Down syndrome. 

4. Plaintiffs challenge H.B. 214 because it undermines their mission to honor and 

support the decisions their patients make, whether it is to continue or to end a pregnancy. For 

many families, the right decision is to continue the pregnancy and parent a child with Down 

syndrome; for some, it is to give birth and place the child for adoption; and for others, it is 

abortion. In the case of patients who have received a positive test for fetal Down syndrome, and 

who choose not to continue the pregnancy, H.B. 214 prevents Plaintiffs from providing 

nonjudgmental, medically appropriate care. H.B. 214 wrests from those patients and their 

families the ability to decide what is right for them. Yet H.B. 214 provides not one whit of 

support for children and adults with Down syndrome, or for their parents. All it does is move the 

locus of personal, medical decision-making from the patient to the legislature, in violation of the 

U.S. Constitution. 

5. By striking at the very heart of the Fourteenth Amendment right to privacy and 

autonomy, H.B. 214 imposes an unconstitutional undue burden on the abortion right, and 

Plaintiffs are therefore entitled to declaratory and injunctive relief against its enforcement. 

II. JURISDICTION AND VENUE 

6. Jurisdiction over Plaintiffs’ claims is conferred on this Court by 28 U.S.C. § 1331, 

§§ 1343(a)(3) and (a)(4). 

7. Venue is proper in this division under 28 U.S.C. § 1391. 

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III. PARTIES 

8. Plaintiff Preterm-Cleveland (“Preterm”), a nonprofit corporation organized under 

the laws of the State of Ohio, has operated a health care clinic in Cleveland, Ohio since 1974. 

Preterm provides a range of reproductive health services, including family planning services; 

pregnancy testing; testing and treatment for sexually transmitted diseases; and medical and 

surgical abortion services. Preterm provides medication abortions through 70 days LMP and 

surgical abortions up to 21 weeks 6 days of pregnancy as dated from the first day of the woman’s 

last menstrual period (“LMP”), which is the same as twenty weeks postfertilization. The 

physicians who perform abortions at Preterm are threatened with criminal penalties, loss of their 

medical license, and civil suits if they violate the Act. Preterm is also threatened with criminal 

liability by the Act. Preterm sues on its own behalf; on behalf of its current and future medical 

staff, servants, officers, and agents; and on behalf of its patients. 

9. Plaintiff Planned Parenthood Southwest Ohio Region (“PPSWO”) is a non-profit 

corporation organized under the laws of the State of Ohio. It and its predecessor organizations 

have provided care in Ohio since 1929. PPSWO provides a broad range of medical services to 

women and men at seven health centers in Southwest Ohio, including: birth control, annual 

gynecological examinations, cervical pap smears, diagnosis and treatment of vaginal infections, 

testing and treatment for certain sexually transmitted diseases, HIV testing, pregnancy testing, 

and abortions. PPSWO provides surgical abortions up to 21 weeks 6 days of pregnancy LMP and 

medication abortions through 70 days LMP. The physicians who perform abortions at PPSWO 

are threatened with criminal penalties, loss of their medical license, and civil suits if they violate 

the Act. PPSWO is also threatened with criminal liability by the Act. PPSWO sues on its own 

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behalf; on behalf of its current and future medical staff, servants, officers, and agents; and on 

behalf of its patients. 

10. Plaintiff Women’s Medical Group Professional Corporation (“WMGPC”) owns 

and operates a facility known as Women’s Med Center of Dayton (“WMCD”) in Kettering, 

Ohio. WMGPC and its predecessors have been providing abortions for women in the Dayton 

area since 1975. WMCD provides surgical and medication abortions, pregnancy testing, and 

birth control health care services to women. WMCD provides surgical abortions up to 21 weeks 

6 days LMP and medication abortions through 70 days LMP. The physicians who perform 

abortions at WMCD are threatened with criminal penalties, loss of their medical license, and 

civil suits if they violate the Act. WMGPC is also threatened with criminal liability by the Act. 

WMGPC sues on its own behalf; on behalf of its current and future medical staff, servants, 

officers, and agents; and on behalf of its patients. 

11. Plaintiff Roslyn Kade, M.D. (“Dr. Kade”) is a physician licensed to practice 

medicine in Ohio since 1987. Dr. Kade performs surgical abortions up to 21 weeks 6 days LMP, 

provides medication abortions through 70 days LMP, provides birth control, treats certain 

sexually transmitted diseases, and provides other health care services to women in the Greater 

Cincinnati and Greater Dayton regions. Dr. Kade is the Medical Director at PPSWO, where she 

occasionally provides abortions, and she also provides abortions at WMCD. 

12. Plaintiff Planned Parenthood Greater Ohio (“PPGOH”) is a non-profit corporation 

organized under the laws of the State of Ohio. PPGOH provides a broad range of medical 

services to women and men at nineteen health centers throughout Ohio, including birth control, 

annual gynecological examinations, cervical pap smears, diagnosis and treatment of vaginal 

infections, testing and treatment for certain sexually transmitted diseases, HIV testing, pregnancy 

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testing, and abortions. PPGOH provides surgical abortions up to 19 weeks 6 days LMP and 

medication abortions through 70 days LMP. The physicians who perform abortions at PPGOH are 

threatened with criminal penalties, loss of their medical license, and civil suits if they violate the Act.

PPGOH is also threatened with criminal liability by the Act. PPGOH sues on its own behalf; on 

behalf of its current and future medical staff, servants, officers, and agents; and on behalf of its 

patients. 

13. Defendant Lance Himes is the Director of the Ohio Department of Health, which 

is responsible for promulgating rules to assist in compliance with H.B. 214. He is charged with 

administering the Department of Health and with enforcing the abortion reporting requirements 

in Ohio Revised Code § 3701.79. He is sued in his official capacity. 

14. Defendant Joseph T. Deters is the Hamilton County Prosecutor and is charged 

with enforcing the criminal provisions contained in H.B. 214 within his jurisdiction. He is sued 

in his official capacity. 

15. Defendant Michael C. O’Malley is the Cuyahoga County Prosecutor and is 

charged with enforcing the criminal provisions contained in H.B. 214 within his jurisdiction. He 

is sued in his official capacity. 

16. Defendant Mat Heck, Jr. is the Montgomery County Prosecutor and is charged 

with enforcing the criminal provisions contained in H.B. 214 within his jurisdiction. He is sued 

in his official capacity. 

17. Defendant Ron O’Brien is the Franklin County Prosecutor and is charged with 

enforcing the criminal provisions contained in H.B. 214 within his jurisdiction. He is sued in his 

official capacity. 

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18. Kim G. Rothermel, M.D., is the Secretary of the State Medical Board of Ohio, 

which is charged with enforcing the physician licensing penalties contained in H.B. 214. She is 

sued in her official capacity. 

19. 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 penalties contained in H.B. 214. 

He is sued in his official capacity. 

IV. FACTS 

A. Abortion Practice and Safety 

20. Women seek abortion for a variety of deeply personal reasons, including familial, 

medical, and financial. Some women have abortions because they conclude that it is not the right 

time in their lives to have a child or to add to their families; some to preserve their life or health; 

some because they receive an indication or diagnosis of a fetal medical condition or anomaly; 

some because they have become pregnant as a result of rape; and others because they choose not 

to have children at all. Some women do not feel they have the resources—financial, medical, 

educational, or emotional—to provide lifelong care to a child with special needs. The decision to 

terminate a pregnancy for any reason is motivated by diverse, complex, and interrelated factors 

that are intimately related to the individual woman’s values and beliefs, culture and religion, 

health status and reproductive history, and resources and economic stability. 

21. Approximately one in four women in this country will have an abortion by age 

forty-five. A majority of women having abortions (61%) already have at least one child, while 

most (66%) also plan to have a child or additional children in the future. 

22. Women in Ohio may obtain two types of abortion: medication abortion and 

surgical abortion. Medication abortion is a method of ending an early pregnancy by taking 

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medications that cause the woman to undergo a process similar to an early miscarriage. Plaintiffs 

provide medication abortion through 70 days LMP, which is a previability point in pregnancy. 

23. Surgical abortion involves utilizing instruments to remove the products of 

conception from the uterus. Despite its name, surgical abortion is not a typical surgical 

procedure: it does not involve any incision. Surgical abortion is available in Ohio up to 21 

weeks, 6 days LMP (or 20 weeks postfertilization), which is a previability point in pregnancy. 

24. Most abortions are performed during the first trimester of pregnancy, when the 

pregnancy is at or less than fourteen weeks LMP. 

25. Under Ohio law, a woman who wishes to have an abortion must visit the abortion 

provider at least 24 hours before the procedure will be performed. During that initial visit, she 

must receive certain information, as well as an ultrasound and the opportunity to see or hear the 

embryonic or fetal heart tone, and she must give her informed consent to the procedure. 

26. During each patient’s initial visit, Plaintiffs provide non-directive patient 

education, which means they listen to, support, and inform the patient, without directing her 

course of action. That process is designed to ensure that patients are well-informed with respect 

to all of their options, including terminating the pregnancy; carrying the pregnancy to term and 

parenting; and carrying to term and placing the baby for adoption. In addition, the process is 

designed to ensure that the woman’s choice is voluntary and not coerced. 

27. Although most of Plaintiffs’ patients disclose at least some information about the 

reasons they are seeking an abortion during these non-directive discussions, Plaintiffs do not 

require that patients disclose any or all of their reasons for seeking an abortion. 

28. Plaintiffs are aware that a small percentage of their patients seek abortions based 

solely or in part on a prenatal diagnosis of Down syndrome or, in rare cases, a prenatal test 

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indicating a likelihood of Down syndrome. These patients typically come to the clinic only after 

undergoing extensive counseling with a high-risk obstetrician-gynecologist (“OB/GYN”), also 

known as a specialist in Maternal-Fetal Medicine (“MFM”), and/or a genetic counselor. 

B. Down Syndrome 

29. Down syndrome is the common name for a genetic anomaly, also known as 

Trisomy 21, that results from a trisomy (i.e., an extra copy, whether full or partial) of the twentyfirst chromosome. The range of medical conditions and abilities can vary widely for people with 

Down syndrome, although this cannot be predicted before birth. Many people with Down 

syndrome require significant care sometimes stretching into adulthood. 

30. There are various screening and diagnostic tests available to detect genetic, 

chromosomal, or structural anomalies, including Down syndrome. “Screening” tests cannot 

diagnose any particular anomaly, but rather indicate a likelihood that one or more anomalies 

exist. These screening tests usually check for a range of anomalies at the same time. By contrast, 

“diagnostic” tests diagnose the existence or non-existence of particular anomalies with near 

certainty. 

31. Screening tests for fetal anomalies are available as early as 10 weeks LMP. One 

diagnostic test, known as chorionic villus sampling (“CVS”), also may be performed as early as 

10 weeks LMP; others, such as amniocentesis and ultrasound examination, are not available until 

15 weeks LMP or later. Many women will not receive a confirmed diagnosis of Down syndrome 

until well into the second trimester of pregnancy because amniocentesis, which tests for a wider 

range of conditions and is more widely available than CVS, is not available until the second 

trimester. 

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32. The American College of Obstetricians and Gynecologists (“ACOG”), which is 

the preeminent professional association for OB/GYNs, recommends that all women should be 

counseled about prenatal genetic screening and diagnostic testing options as early as possible in 

the pregnancy, ideally at the first prenatal visit. ACOG recommends that all women, regardless 

of age, be offered the option of screening or diagnostic testing for fetal genetic disorders. ACOG 

also recommends that women with positive screening test results be offered further counseling 

and diagnostic testing. 

C. Impact of HB 214

33. H.B. 214 amends the criminal provisions of the Ohio Revised Code to make it a 

crime to perform an abortion if the person providing the abortion knows that one reason the 

woman seeks an abortion is fetal Down syndrome. 

34. Specifically, H.B. 214 adds a provision to the Ohio Revised Code prohibiting any 

person from “purposely perform[ing] or induc[ing] or attempt[ing] to perform or induce an 

abortion on a pregnant woman if the person has knowledge that the pregnant woman is seeking 

the abortion, in whole or in part, because of” a test result indicating Down syndrome, a prenatal 

diagnosis of Down syndrome, or “[a]ny other reason to believe” that the fetus has Down 

syndrome. Ohio Rev. Code § 2919.10(B). 

35. Violation of H.B. 214’s prohibition constitutes a fourth degree felony. Ohio Rev. 

Code § 2919.10(C). 

36. Any physician who violates H.B. 214 is subject to mandatory license revocation 

by the state medical board, and is further subject to a civil suit by “any person” that “sustains 

injury, death, or loss to person or property as the result of the” abortion or attempted abortion. 

Ohio Rev. Code § 2919.10(D)-(E). 

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37. H.B. 214 adds section 2919.101 to the Ohio Revised Code. Section 2919.101 

requires the attending physician to state in his or her abortion report to the Ohio Department of 

Health that he or she “does not have knowledge that the pregnant woman was seeking the 

abortion, in whole or in part” because of a test result indicating Down syndrome, a prenatal 

diagnosis of Down syndrome, or “[a]ny other reason to believe” that the fetus has Down 

syndrome. Ohio Rev. Code § 2919.101(A). 

38. H.B. 214 also requires the Department of Health to promulgate rules “to assist in 

compliance with” the requirements of section 2919.101, within ninety days of H.B. 214’s 

effective date—that is, no later than June 21, 2018. Ohio Rev. Code § 2919.101(B). 

39. Ohio Revised Code section 3701.79, as amended by H.B. 214, likewise mandates 

that the attending physician include in his or her abortion report, “insofar as the patient makes 

the data available that is not within the physician’s knowledge,” a “[w]ritten acknowledgement 

... that the pregnant woman is not seeking the abortion, in whole or in part, because of” a test 

result indicating Down syndrome, a prenatal diagnosis of Down syndrome, or “[a]ny other 

reason to believe” that the fetus has Down syndrome. Ohio Rev. Code § 3701.79(C)(7). 

40. H.B. 214 contains no exception allowing the abortion to be performed when it is 

necessary to preserve the health or life of the woman, if the physician knows any “part” of the 

woman’s decision for the abortion is also related to a test result indicating Down syndrome, a 

prenatal diagnosis of Down syndrome, or “[a]ny other reason to believe” that the fetus has Down 

syndrome. 

41. Under Ohio Revised Code section 2901.22, which was not amended by H.B. 214, 

a “person” is considered to have “knowledge of circumstances when the person is aware that 

such circumstances probably exist.” Section 2901.22 also provides that “[w]hen knowledge of 

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the existence of a particular fact is an element of an offense, such knowledge is established if a 

person subjectively believes there is a high probability of its existence and fails to make inquiry 

or acts with a conscious purpose to avoid learning the fact.” 

42. If H.B. 214 takes effect, Plaintiffs will be unable to provide an abortion for a 

woman if they know that fetal Down syndrome is at least “part” of her reason for terminating the 

pregnancy. Thus, H.B. 214 will completely ban these patients from obtaining an abortion in 

Ohio. Plaintiffs will cease providing care in these circumstances solely to avoid the civil, 

criminal, and disciplinary sanctions imposed by H.B. 214. 

43. If Plaintiffs’ patients who are affected by H.B. 214 can no longer obtain an 

abortion in Ohio, they will be forced to travel out of the state to get the care they need, which can 

lead to unnecessary delay, and some will be unable to obtain an abortion at all. 

44. While abortion is an extremely safe procedure, the risks associated with abortion 

increase as the pregnancy progresses. 

45. Some of Plaintiffs’ patients will be unable to travel out of state to access abortion 

care and will therefore be forced to carry to term against their will. 

46. Being forced to continue a pregnancy against her will can pose a risk to a 

woman’s physical, mental, and emotional health, and even her life, as well as to the stability and 

wellbeing of her family, including her existing children. 

47. Plaintiffs wish to continue providing safe and nonjudgmental abortion care to 

patients who have knowingly and voluntarily decided to terminate their pregnancies, regardless 

of the particular reason for the decision. 

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V. CLAIMS FOR RELIEF – 42 U.S.C. § 1983 

COUNT I 

(Substantive Due Process) 

48. The allegations of paragraphs 1 through 57 are incorporated as though fully set 

forth herein. 

49. By prohibiting previability abortions based on the woman’s reason for seeking the 

care, the Act violates the rights to liberty and privacy secured to Plaintiffs’ patients by the Due 

Process Clause of the Fourteenth Amendment to the United States Constitution. 

VI. PRAYER FOR RELIEF 

WHEREFORE, Plaintiffs request that this Court: 

A. Issue a declaratory judgment that Ohio Revised Code §§ 2919.10, 2919.101, and 

3701.79, as amended by House Bill 214, are facially unconstitutional. 

B. Issue a preliminary and permanent injunction against Defendants and all those in 

active concert and participation with them from enforcing the Act; 

C. Award to Plaintiffs reasonable costs, expenses, and attorney fees; 

D. Award such other and further relief as this Court shall deem just and reasonable. 

Respectfully submitted, 

Alexa Kolbi-Molinas (admission Pro Hac 

Vice pending) 

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor 

New York, NY 10004 

(212) 549-2633 

akolbi-molinas@aclu.org 

Counsel for Plaintiff Preterm 

/s/ B. Jessie Hill 

B. Jessie Hill #0074770 

Cooperating Counsel for the ACLU of 

Ohio Foundation 

ACLU of Ohio 

4506 Chester Ave. 

Cleveland, OH 44103 

(216) 368-0553 

(216) 368-2086 (fax) 

bjh11@cwru.edu

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Carrie Y. Flaxman (admission Pro Hac Vice 

pending) 

Planned Parenthood Federation of America 

1110 Vermont Avenue, NW, Suite 300 

Washington, DC 20005 

(202) 973-4800 

(202) 296-3480 (fax) 

carrie.flaxman@ppfa.org 

Counsel for Plaintiffs Planned 

Parenthood of Greater Ohio and Planned 

Parenthood Southwest Ohio Region

Melissa Cohen (admission Pro Hac Vice 

pending) 

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 of Greater Ohio and Planned 

Parenthood Southwest Ohio Region 

Freda J. Levenson #0045916 

ACLU of Ohio Foundation, Inc. 

4506 Chester Avenue 

Cleveland, OH 44103 

(216) 472-2220 

(216) 472-2210 (fax) 

flevenson@acluohio.org

Counsel for Plaintiff Preterm 

Counsel for Plaintiff Preterm 

Jennifer L. Branch # 0038893 

Trial Attorney for Plaintiffs 

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, 

Roslyn Kade, M.D., and Women’s Med 

Group Professional Corporation 

 

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