Oral Argument Preview: Abortion Clinic, State Spar Over Standing Requirements for Single-Subject Challenge. Preterm-Cleveland, Inc. v. Governor John R. Kasich et al.

Read the analysis of the oral argument here.

On September 26, 2017, the Supreme Court of Ohio will hear 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 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 (“HB 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 HB 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 HB 59, Preterm had a written transfer agreement with a private hospital, and the agreement 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 HB 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.

Votes to Accept the Case

Yes: Justices O’Donnell, Kennedy, French, O’Neill, Fischer, and DeWine.

No: Chief Justice O’Connor.

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 (10th 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.)

 Village of Linndale v. State, 2014-Ohio-4024 ¶ 19 (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.)

State’s Argument

Standing is constitutional in nature and the Ohio Constitution requires standing for each claim. Standing is “claim-specific.” Standing is necessary to invoke the jurisdiction of the court. The Court of Appeals’ view of standing (which holds plaintiff has standing to challenge the entire bill based on the one-subject rule if it can show any one provision within the bill causes it injury) is “novel,” undermines the rule that standing is claim-specific, and relaxes traditional standing requirements. A whole-bill one-subject challenge raises a single claim, alleging the bill has “such disunity” that no core of the bill can be saved. Contrary to Preterm’s claim that it is attacking the whole bill under the one-subject rule, it is in fact attacking only certain provisions within HB 59; further, if a plaintiff attacks certain provisions within a bill, that plaintiff must establish standing for each provision, proving direct and concrete injury for each, in order to sustain a one-subject challenge for each provision individually.

Preterm cannot prove standing for each provision it attacks, because it cannot prove direct, concrete (as opposed to de minimus) injury for each. As to the “parenting and pregnancy” provisions, Preterm has not been affected by this provision because it has never applied for or received TANF funding. As to the “written transfer agreement” provisions, Preterm cannot prove a concrete, cognizable injury because its current and past transfer agreements have been with private, not state, hospitals. Any argument that Preterm will be limited in its ability to renew these agreements with state hospitals is purely speculative, and does not constitute present injury. Simply being required to file this agreement every two years, instead of producing it on request, is not a palpable “injury.” As to the “heartbeat” provisions, these are directed only at those performing abortions and patients receiving them, and Preterm has not and will not suffer liability under these. Preterm cannot establish standing through injury to others, and has not joined any doctors to the action.

Preterm’s Argument

The court of appeals applied longstanding, traditional standing doctrine and correctly concluded Preterm has standing based on injury traceable to HB 59. In a one-subject challenge, the act of enacting a bill containing more than one subject is the constitutional violation. A plaintiff injured by any single portion of the bill may challenge it in its entirety. A plaintiff does not need to show that prosecution or actual loss of license is imminent or underway—only that it is a member of the group specifically targeted by the statute. Where a plaintiff is the target of a piece of legislation, that plaintiff automatically has standing.

Preterm correctly asserted a single claim—that HB 59 violates the one-subject rule of the Ohio Constitution. Preterm simply used the three provisions at issue to show that those provisions are unrelated to appropriations or budget. Because the court of appeals found injury under at least one provision of the bill, Preterm has standing to challenge the bill as a whole.

Preterm maintains it is targeted by the “written transfer” and “heartbeat” provisions. It must comply with those provisions, which impose administrative burdens and faces sanctions for failure to comply. It has had to change its conduct and practices in the face of H.B. 59 to avoid sanctions and prosecution.

Even if the Court adopts the state’s theory that plaintiffs can only challenge individual provisions of a bill under the one-subject rule, Preterm still has standing because it has demonstrated injury under two of the provisions: (1) the written transfer agreement provisions; and (2) the heartbeat provisions, and thus can seek their severance from the rest of HB 59. Preterm argues it has proven injury through evidence that is has changed its policies, protocols, and conduct in order to comply with these provisions and avoid civil sanctions and criminal prosecution.

Finally, Preterm seeks severance of the three offending provisions of the bill because severance will preserve the unity of the bill.

 Pro Forma Argument of Cuyahoga County Prosecutor

The Prosecutor, an appellee here, argues the trial court’s grant of partial summary judgment as to him, which was left undisturbed by the Court of Appeals, should also be left undisturbed by the Supreme Court. He argues that the real dispute is between Preterm and the State Defendants, and that, although the Prosecutor may be an interested bystander, Preterm has made no claim for substantive relief against him (as Preterm has not contended that he acted or threatened to act in violation of a legally protected interest Preterm may claim). He contends he was named as defendant only to the extent that he could act to enforce the criminal sanctions associated with the “heartbeat” provisions.

 State’s Proposed Proposition of Law

The Ohio Constitution requires plaintiffs to establish standing for each claim, so a plaintiff challenging several provisions in a bill on one-subject grounds must prove standing for each provision. To do so, a plaintiff must identify an injury that is both concrete and particularized and actual and imminent. A plaintiff therefore lacks standing to challenge laws that may never harm it, that it may satisfy merely by sending a document, or that apply only to different persons.

Preterm’s Proposed Counter Proposition of Law

The Ohio Constitution requires that, to challenge a legislative enactment under the one-subject rule, the plaintiff must challenge the enactment as a whole. A plaintiff may challenge the enactment as a whole by establishing redressable injury as a result of at least one offending provision of the challenged enactment, but need not do so as to each and every provision that may create disunity of subject matter. A plaintiff may prove standing by demonstrating that, but for the requirements of the statute, it would not have changed its course of conduct, and it reasonably fears sanctions if it does not comply with the statute.

Student Contributor: Kristen Elia

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