What’s On Their Minds: Abortion Clinic, State Spar Over Standing Requirements for Single-Subject Challenge. Preterm-Cleveland, Inc. v. Governor John R. Kasich et al.

By Marianna Bettman on October 5, 2017

Update: On February 6, 2018, the Supreme Court of Ohio handed down a merit decision in this case. Read an analysis here.

On September 26, 2017, the Supreme Court of Ohio heard oral argument in Preterm-Cleveland, Inc. v. Governor John R. Kasich et al, 2016-1252. The issue in this case is whether Preterm-Cleveland Inc. has standing to challenge the constitutionality of the whole or some specific provisions of the 2013 Ohio Budget Bill Am.Sub.H.B.No 59 as violating Ohio’s one-subject rule.

Case Background

Appellee Preterm-Cleveland Inc., (“Preterm”), a Cleveland Abortion Clinic, brought suit against Appellants Governor John R. Kasich; the state of Ohio; the Ohio Department of Health and its Director; the Ohio Department of Job and Family Services and its Director; the Ohio Medical Board and its members, (collectively, “the state” or “the State Defendants”) and the Cuyahoga County Prosecutor, who is only technically involved in this appeal. Preterm is a healthcare facility and qualifies as an ambulatory surgical facility (“ASF”). It provides abortion procedures and care, along with other reproductive health services.

Preterm filed a lawsuit challenging the constitutionality of the Ohio Budget Bill Am.Sub.H.B.No 59 (“H.B. 59”). Preterm alleged that three provisions in the bill, namely the “Heartbeat” provisions, the “Written Transfer Agreement” provisions, and the “Parenting and Pregnancy” provisions violate the Ohio Constitution’s single subject requirement because they are not related to appropriations or budgeting, and destroy the bill’s “unity of purpose.”

The Heartbeat Provisions require doctors to attempt to locate a fetal heartbeat 24 hours before performing an abortion. If one can be located, the doctor must ask the patient if she would like to see or listen to the heartbeat, and must inform the patient of the statistical probability of carrying the pregnancy to term, based on the gestational stage of the fetus. Failure to comply with these provisions can result in civil liability and criminal prosecution. After the passage of H.B. 59, Preterm amended its policies and protocols in order to comply with the heartbeat provisions.

The Written Transfer Agreement provisions require all ambulatory surgical facilities to have written transfer agreements with local hospitals in case of an emergency in which a patient needs to be transferred to a hospital. These agreements must be renewed every two years, with changes filed with the Director of Health. These provisions also prohibit state hospitals from entering into transfer agreements with ASFs that provide abortion services. Before the passage of H.B. 59, Preterm had a written transfer agreement with a private hospital, and the agreement had automatically renewed yearly.

The “Parenting and Pregnancy” provisions create a program (the Ohio Parenting and Pregnancy Program) designed to promote childbirth and parenting skills. The program is funded by TANF (Temporary Assistance for Needy Families). The program authorizes the allocation of federal funds to nonprofit organizations that promote childbirth, parenting, and alternatives to abortion. Entities that receive funding under the program may not perform abortions or provide abortion-related counseling. Neither before nor after the passage of H.B. 59 did Preterm receive any TANF funding regarding the parenting and pregnancy provisions.

At the trial court level, the state defendants moved to dismiss for lack of standing. The trial court denied the motion, but allowed discovery on that issue. Subsequently, Preterm moved for summary judgment on the single subject issue. The state defendants moved for summary judgment, arguing that Preterm lacked standing to challenge these provisions.

The trial court found that Preterm lacking standing, and granted summary judgment to the state. Because of this ruling, the trial court did not address the merits of Preterm’s single-subject challenge. Preterm appealed.

Court of Appeals Decision

The Eighth District Court of Appeals, in a 2-1 decision authored by Judge Tim McCormack, joined by Judge Eileen A. Gallagher, reversed and remanded the case. The majority found that a challenge under the one-subject rule is a challenge to the entire bill. To establish standing, a plaintiff must show that it has suffered injury from any provision of that bill, and Preterm has done so in this case.

Judge Melody Stewart dissented. She would find that Preterm lacked standing because it had not shown that it had suffered any concrete injury as a result of the legislation. Rather, the injuries claimed by Preterm could only be suffered by potential patients and doctors who performed abortions.

Read the oral argument preview of the case here.

Key Precedent

Ohio Constitution, Article II, Section 15(D) (“[n]o bill shall contain more than one subject, which shall be clearly expressed in its title.”)

R.C. 3702.303 (Written transfer agreement statute)

(“(A) Except as provided in division (C) of this section, an ambulatory surgical facility shall have a written transfer agreement with a local hospital that specifies an effective procedure for the safe and immediate transfer of patients from the facility to the hospital when medical care beyond the care that can be provided at the ambulatory surgical facility is necessary, including when emergency situations occur or medical complications arise. A copy of the agreement shall be filed with the director of health.)

State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451 (1999) (Plaintiff may bring an action without satisfying traditional standing requirements in the rare and extraordinary instance where the public interest is at stake; outlining public-right doctrine.)

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (standing is claim specific, as “a plaintiff must demonstrate standing for each claim he seeks to press.”)

Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948 (rejecting a one-subject rule challenge where the plaintiff did not challenge the entire bill.)

Groch v. GMC, 117 Ohio St. 3d 192, 2008- Ohio-546 (a plaintiff bringing a one-subject challenge must challenge the bill’s enactment as a whole, in order for the court to analyze the case under the one-subject rule. If a plaintiff challenges only one provision, the court will not analyze it as a one-subject issue.)

Akron Metropolitan Housing Authority Board of Trustees v. State, 2008-Ohio-2836 (10^th dist.) (entire bill invalidated on single-subject grounds because court could find no discernible common purpose.)

Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, (Under established Ohio and federal standing doctrine, a plaintiff must show it has suffered “(1) an injury that is (2) fairly traceable to the defendant’s allegedly unlawful conduct, and (3) likely to be redressed by the requested relief.”)

ProgressOhio.org., Inc. v. JobsOhio, 139 Ohio St. 3d 520, 2014-Ohio-2382, ( ProgressOhio, a nonprofit organization, did not have standing to sue the public-private development corporation JobsOhio, as ProgressOhio had no direct, personal stake in the outcome of the case; further, ProgressOhio did not present an issue of public interest important enough to qualify for the public right exception.)

Lindale v. State, 2014-Ohio-4024 (10th Dist.), appeal not allowed sub nom. Lindale v. State, 2015-Ohio-1896 (appeals court struck down a bill based on a provision that disturbed the unity of bill but which did not harm the plaintiff.)

State ex rel. Walgate v. Kasich, 147 Ohio St. 3d 1, 2016-Ohio-1176, (A number of plaintiffs sued Ohio Governor John Kasich and various Ohio lottery organizations, alleging that numerous pieces of legislation, which established casinos in Ohio, were unconstitutional. The court held only one plaintiff had standing to sue; it held the others, who based standing on the “negative effects of gambling,” the fact that they were public school teachers, parents, or payers of “special funds,” had not suffered or were not threatened with any direct and concrete injury in a manner or degree different from that suffered by the public in general.)

At Oral Argument

Arguing Counsel

Ryan L. Richardson, Assistant Attorney General, Columbus, for Appellants, the State Defendants.

B. Jesse Hill, Case Western Reserve University School of Law, Cleveland, for Appellee Preterm-Cleveland.

State Defendants’ Argument

Preterm is asking this court fundamentally to redefine standing in single subject cases. It seeks a rule that would allow any plaintiff in a single subject case to challenge any subject in a bill without first showing injury from that provision. This court should reject this approach and instead apply settled standing principles. Once it does, this case becomes straightforward. Preterm lacks standing to raise any of its challenges to H.B. 59.

The general rule here is that a plaintiff who raises multiple challenges to different provisions in a bill must show that each of those provisions caused it injury. Preterm argues that in a single subject case, a plaintiff should be allowed to challenge any provision in a bill, including in this case a budget bill that includes hundreds of different provisions in thousands of pages. Preterm’s harmed-by-one-challenge-all theory would amount to a fundamental relaxation of the standing rules in single subject cases, and should be rejected. The appeals court found that Preterm had been harmed by certain provisions of H.B. 59, but then allowed Preterm to challenge other provisions, by which it can show no harm. By that reasoning, Preterm could have challenged any of the hundreds of provisions in the budget bill.

As for the Written Transfer Agreement provision—an issue presently before this court in the Capital Care case, in which the state does not challenge that clinic’s standing to challenge that provision–Preterm has not presented evidence to demonstrate how its burden compares now to what it was before. As for the Fetal Heartbeat/Informed Consent provisions, those apply to doctors, not to Preterm as a clinic. And Preterm admits it was not harmed by the Parenting and Pregnancy provisions. The essence of standing is having a plaintiff that has a direct and concrete stake in the issues. While the Clinic separately alleges that it itself has suffered various harms in regard to the changes it has made in its policies, the Clinic has not presented any evidence to substantiate those allegations.

Preterm seeks to allow the court to have a judicial line item veto, where the court can go in sua sponte, review an entire bill, and select those provisions that it deems as falling outside of the single subject, regardless of whether it has even been challenged. This approach must be rejected.

Preterm’s Argument

Preterm is challenging the process by which these three sets of provisions were added to the H.B. 59, and not the substance of the provisions. The challenge under the one subject rule is a challenge to the process, to the entire enactment itself. In this case, the legislature tucked controversial provisions into a must-pass budget bill at the 11^th hour without opportunity for public scrutiny or debate. If the legislature wishes to pass these provisions, it must to do so through a fair and constitutional legislative process, and this court must ensure that when the legislature passes a bill, it does so in compliance with the Constitution.

If a plaintiff has standing—injury, causation, and redressability–under a provision of an omnibus budget bill, that plaintiff has standing to challenge the bill. After that, it becomes a question of the merits and the proper remedy– whether there is a single purpose and certain provisions need to be severed, because they are unrelated to that single purpose, or whether the proper remedy is to strike an entire bill.

If the court does adopt the view that a plaintiff has to show injury under each provision that is unrelated to the primary purpose of the bill, Preterm clearly has standing under the Heartbeat Provisions and the Written Transfer Agreement Provisions, and thus has standing to seek severance of these two provisions. While Preterm has a written transfer agreement, that agreement used to automatically renew. Now it must be renewed every two years and filed with the Director of the Department of Health, which means a new round of contract negotiations every two years. That is a new regulatory burden the statute imposes on the Clinic, and that is all Preterm needs to show to establish standing.

As for the Heartbeat Provisions, both doctors and clinics have standing to challenge these provisions. Preterm, as a clinic, is a person under Ohio law and is threatened with prosecution under the Heartbeat provisions. Those provisions impose certain requirements with respect to record keeping, ultrasounds, and scheduling patients. And while the actual process of informed consent largely occurs between doctor and patient, even if the provisions only impose obligations on its doctors, Preterm is still burdened because it cannot stay in business if its doctors are being prosecuted or losing their licenses. It has had to change its protocols to comply with these provisions.

There is no case law that says a clinic must wait until one of its doctors loses his or her license to have standing. To the contrary, the burden on the clinic of rescheduling, and of taking on required administrative changes is sufficient to grant the clinic standing, to show injury to the clinic. Because of the Heartbeat provisions, the Clinic has to schedule more patient visits.

Finally, Preterm has always been clear it does not suffer injury under the Parenting and Pregnancy provisions. Those provisions are just one set of the provisions that destroy the unity of the budget bill, and should be severed, along with the Heartbeat provisions and the Written Transfer Agreement provisions. Regardless of what the court finds about Preterm’s right to seek severance of the Parenting and Pregnancy provisions, it clearly has standing to challenge the Heartbeat and Written Transfer Agreement provisions.

What Was On Their Minds

The Budget Bill

Is Preterm challenging the procedure or the substance of H.B. 59, asked Justice O’Neill? The fact that the provisions were brought in at the last minute, and nobody had a chance to be heard?

If there is a budget bill, and someone believes there are some agricultural provisions they think violate the one subject rule, anything else in the bill is fair game for that plaintiff, asked Justice DeWine?

Where’s the Injury?

Is showing an extra step in order to do something all that is necessary, asked Chief Justice O’Connor? Is that a sufficient method of showing a burden which equates with injury?

Is changing from automatic renewal of a written transfer agreement to requiring reapplication every two years enough to meet the definition of a concrete injury, asked Justice O’Neill?

Has any doctor lost his license as a result of the enactment of this bill, asked Justice O’Donnell? If one did, would that be an injury to Preterm? Is increased recording requirements an injury? Is there any evidence of cost in the record?

Single Subject Challenges

If there is an omnibus budget bill and there is one provision of that bill that one plaintiff finds violates the single subject rule, can that plaintiff strike down the entire bill, asked Justice DeWine? Is that how this works? One plaintiff could strike any provision that doesn’t meet the single purpose of the bill?

If the court were to accept a whole-bill challenge, can the court then go through that entire bill, and strike provisions that it would deem to violate the one-subject rule even if Preterm had not drawn the court’s attention to them, asked Chief Justice O’Connor?

Standing Rules

If someone is threatened with a direct and concrete injury, doesn’t that someone have standing to seek redress in the courts, asked Justice O’Neill?

What else should Preterm have provided to show standing, asked Justice French?

The Capital Care Case

What is the interaction between this case and Capital Care Network of Toledo v. State of Ohio Department of Health (which the court heard September 12, 2017) asked Justice French?

Written Transfer Agreement Provisions

Does the state contest the fact that Preterm was threatened with a direct and concrete injury by the enactment of Written Transfer Agreement provisions, asked Justice O’Neill? (yes, the state does contest that.)

Justice DeWine commented that the Clinic’s strongest argument seemed to him to be having to update the written transfer agreement every two years. What is different under H.B. 59 in that regard? What does it mean to have to update the transfer agreement every two years? How does the record support injury under that provision?

Would all ambulatory surgical facilities have standing to challenge the written transfer agreement provisions, asked Justice Fischer?

Does Preterm have a written transfer agreement in place, asked Justice O’Donnell? How long has it had such an agreement? Did the change to a two-year renewal affect the operations of the Clinic? Is that the injury Preterm is claiming?

Heartbeat/Informed Consent Provisions

Is the fetal heartbeat requirement something new, asked Chief Justice O’Connor? Are more ultrasounds now required? Has Preterm had to increase the number of ultrasounds performed there?

Wouldn’t doctors have an interest in these provisions, asked Justice Fischer? Because they would have a legal interest in how they treat patients?

Is there any informed consent requirement on Preterm, asked Justice O’Donnell? Or just on the physicians? Is that a record keeping requirement, on the clinic?

What about the record-keeping requirements on the staff, asked Justice French?

Parenting and Pregnancy Provisions

Would Preterm concede it has no injury with respect to the Parenting and Pregnancy Provisions, asked Justice French?

How it Looks From The Bleachers

To Professor Emerita Bettman

I think the court is going to adopt the view that a plaintiff has to show injury under each provision that it claims is unrelated to the primary purpose of the bill, not the broad challenge to the process allowing a plaintiff to challenge any provision in the bill. To use Ms. Richardson’s words, the court is not going to adopt an approach which gives a “judicial line item veto” on any provision the court deems as falling outside the core purpose of a given bill. No way.

Preterm may have produced the bare minimum to show standing to challenge the Written Transfer Agreement provisions and the Heartbeat/Informed Consent provisions. The justices asked a lot of questions about exactly how these new provisions were more burdensome. Having to renew a written transfer agreement every two years instead of automatically may squeak by, but it also may not be enough to satisfy 4 justices. I also admit to a certain irony, in all the questioning about whether Preterm as a Clinic suffered an injury with the informed consent provisions, or just the doctors who actually perform the abortions. Are corporations persons just when it is convenient? Still, not much should be required at the pleading stage, and Preterm may squeak by. If it does, that is just the beginning. The merits will be much harder.

As an aside, I found the state’s point that it did not challenge Capital Care’s standing to challenge the written transfer agreement statute in that case (perhaps thus suggesting the court could skip it in this case?) a bit unfair, since the state argued in Capital Care that the court should not reach any of the constitutional issues, and just hang that case on the rule that preceded the written transfer agreement statute.

To Student Contributor Kristen Elia

This case is hard to call. Many justices seemed skeptical that Preterm suffered “concrete” injury under any of the challenged provisions. Justice O’Donnell pushed particularly hard against Preterm’s argument that it suffered injury under the Heartbeat provisions. At one point, he noted that he “understood” the State’s argument that the provisions applied solely to doctors, but he seemed unconvinced by Preterm’s argument that it is impacted through its doctors, indicating that Preterm could suffer injury only if one of its doctors lost his or her license for noncompliance with the provisions. Justice French, however, seemed sympathetic to Preterm’s argument that it suffered administrative burdens in order to comply with the Heartbeat provisions, and questioned the State on this point.

Justice O’Donnell was similarly skeptical of injury under the Written Transfer Agreement provisions, asking if Preterm really believed it suffered concrete injury by renewing agreements in 2015 and 2017. Chief Justice O’Connor, however, noted here that all Preterm needed to do to establish standing was show that they took any additional steps in order to comply with any of the provisions. Justice DeWine seemed to think this was Preterm’s “strongest” injury argument, although he did not seem to think it was especially strong, calling the affidavit’s allegations of injury “conclusory.” Justice O’Neill expressed similar uncertainty as to the “concreteness” of this injury.

Ultimately, Preterm may win by the skin of its teeth. Case law supports Preterm’s contention (with which Chief Justice O’Connor agrees) that injury exists where a plaintiff can prove it took any additional steps in order to comply with the laws. However, as the State pointed out, “additional step” injury is generally supported by more substantial evidence than an affidavit alleging “administrative burdens.”

Finally, none of the justices gave much indication on how they felt about the one-subject standing standard in general, although Justice DeWine seemed somewhat perturbed by the thought that a plaintiff could strike down an entire bill by challenging just one provision of it.