Merit Decision: Abortion Clinic Lacks Standing to Make Single-Subject Challenge to State Budget Bill for Inclusion of Abortion Provisions. Preterm-Cleveland, Inc. v. Kasich.

“The Supreme Court of the United States has stated standing “’is not dispensed in gross.’”

Justice O’Donnell, majority opinion.

On February 6, 2018, the Supreme Court of Ohio handed down a merit decision in Preterm-Cleveland, Inc. v. Kasich,  Slip Opinion No. 2018-Ohio-441. (According to the Reporter’s Note, the case was actually decided on January 24, 2018, while Justice O’Neill was still on the Court, but released on February 6, 2018, after O’Neill had left the Court.) In a 5-2 opinion written by Justice O’Donnell, joined by Justices Kennedy, French, Fischer, and DeWine, the Court held that Preterm did not have standing to challenge the 2013 budget bill. Preterm had argued that the budget bill violated the single-subject provision in the Ohio Constitution when certain abortion-related provisions that had nothing to do with the budget were added. Chief Justice O’Connor dissented, joined by then-Justice O’Neill.  The case was argued September 26, 2017.

Case Background

Appellee Preterm-Cleveland Inc., (“Preterm”), a Cleveland ambulatory services facility that provides abortions, filed 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 Defendants”) and the Cuyahoga County Prosecutor, who is only technically involved in this appeal.

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 Challenged Provision and Their Impact on Preterm

Written Transfer Agreement Provisions

The Written Transfer Agreement Provisions, codified at R.C. 3902.30, 3702.302 through 3702.308, and 3727.60, require all ambulatory surgical facilities to have a written transfer agreement with a local hospital in case of emergencies. Public hospitals are banned from entering into such agreements with abortion clinics. A copy of the written transfer agreement must be filed with the director of health, and updated every two years, with the updated agreement also filed with the director. The director must be notified immediately of any changes to the agreement. A facility’s license cannot be renewed unless the most current agreement is satisfactory, or the director has granted a variance.  For more on written transfer agreements, read the merit decision in Capital Care Network of Toledo v. Dept. of Health, Slip Opinion No. 2018-Ohio-440, released the same day as this case.

Preterm has had a written transfer agreement since 2005 with University Hospitals of Cleveland, now known as University Hospitals Cleveland Medical Center, a private hospital. The agreement had an automatic renewal option, and the new one, executed in 2013, still does.

According to an affidavit submitted by Preterm, the Written Transfer Agreement Provisions in the budget bill have caused Preterm to suffer new administrative burdens, limited the number of hospitals with which it could contract, and placed its license at greater risk than it was before.

Heartbeat Provisions

The Heartbeat Provisions are codified at R.C. 2317.56, 2919.19 through 2919.193, and R.C. 4731.22. 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.

Preterm claims that because of these provisions, it had to amend its practices and protocols, conduct research, and undertake new recordkeeping burdens to avoid criminal prosecution and civil liability. Because these provisions apply to “persons,” Preterm argues they apply to the Clinic, not just to its doctors.

Parenting and Pregnancy Provisions

The Parenting and Pregnancy provisions are codified at R.C. 5101.80, 5101.801, and 5101.804. These provisions create a program designed to promote parenting skills for pregnant women and people who care for young children, and allow the use of federal funds to certain entities as long as they aren’t associated with any abortion activities. Preterm conceded it was not injured specifically by this provision, but argues it is properly a part of its overall single subject challenge.

Proceedings Below

The trial court granted the county prosecutor’s unopposed motion for summary judgment with regard to the Parenting and Pregnancy and Written Transfer Agreement Provisions, and sua sponte granted summary judgment to the prosecutor on the Heartbeat Provisions. The trial court denied Preterm’s motion for summary judgment and granted summary judgment to the state defendants on all disputed  provisions, finding Preterm lacked standing to challenge H.B. 59.

In a split decision, the Eighth District Court of Appeals reversed the trial court on the standing issue with regard to the state defendants, and remanded the case for further proceedings.  The grant of summary judgment to the prosecutor on the heartbeat and transfer provisions was left undisturbed.

Read the oral argument preview of the case here and an analysis of the argument here.

Key Statutes and 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.)

R.C. 2919.191 (Heartbeat Provisions)

R.C. 5101.804(A)(1) (Parenting and Pregnancy Provisions)

ProgressOhio.org., Inc. v. JobsOhio, 139 Ohio St. 3d 520, 2014-Ohio-2382 (“A matter is justiciable only if the complaining party has standing to sue.”)

Ohio Trucking Assn. v. Charles, 134 Ohio St.3d 502, 2012-Ohio-5679 (“In order to have standing to attack the constitutionality of a legislative enactment, the private litigant must generally show that he or she has suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the public in general, that the law in question has caused the injury, and that the relief requested will redress the injury,” quoting State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451 (1999).)

Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F.Supp.3d 1225 (D.Colo.2013) (Standing properly established by self-insured religious organizations and their third-party administrator to challenge regulations implementing requirement that group health plans provide women coverage for certain preventative contraception services without a copayment or deductible.)

Dissent Precedent

R.C. 1.59(C) (“‘Person’ includes an individual, corporation, business trust, estate, trust, partnership, and association.”)

United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973) (standing is “not confined to those who could show ‘economic harm.’”)

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (injury need not be monumental, only “perceptible.”)

Frank v. United States, 78 F.3d 815 (2d Cir.1996) (Administrative burdens of compliance with a gun-control statute constituted injury for purposes of standing.)

Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463 (7th Cir.1998) (a clinic’s standing to challenge a law prohibiting a “person” from performing a partial-birth abortion is “not open to question.”)

Rhode Island Med. Soc. v. Whitehouse, 66 F.Supp.2d 288 (D.R.I.1999) (a clinic has standing to challenge a law providing that no person shall knowingly perform a partial birth abortion.)

Lozano v. Hazleton, 620 F.3d 170 (3d Cir.2010) (Requirement of affidavit of compliance with city ordinance about employees who lacked immigration status enough to confer standing.)

Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) (“‘Concrete’ is not, however, necessarily synonymous with ‘tangible.’ Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.”)

Merit Decision

Executive Summary

Preterm failed to prove it suffered or was threatened with any concrete injury from passage of the budget bill, so it lacked standing to seek severance of the written transfer agreement, heartbeat, and parenting and pregnancy provisions. The court of appeals is reversed and the decision of the trial court is reinstated.

Position of the Parties

State Defendants’ Position

The state defendants argue that in order to challenge a bill based on a single subject violation, a party must have standing as to each offending provision.

Preterm lacked standing to challenge the Written Transfer Agreement Provisions because it had a stable, longstanding agreement with a private hospital, and any concern that the public hospital ban might harm it in the future is purely speculative.

Preterm lacked standing to challenge the Heartbeat Provisions because those provisions only regulate physicians, not clinics, so Preterm faces no credible threat of prosecution.

Finally, the court of appeals was wrong in finding Preterm could challenge the Parenting and Pregnancy Provisions, when it was not injured by them.

Preterm’s Position

The Clinic has standing to bring a single subject challenge to a bill if it is injured by any provision in that bill, and may seek to sever any provision that destroys the bill’s unity of purpose. The Clinic was specifically injured by the Written Transfer Agreement and Heartbeat Provisions, as detailed above, and it also has standing to challenge the Parenting and Pregnancy Provisions.

Cuyahoga County Prosecutor

Summary judgment was granted below in favor of the county prosecutor on the Written Transfer Agreement and Parenting and Pregnancy Provisions. No one challenged that ruling in this appeal, so the Court does not address it.

Analysis of Majority Opinion

Preterm Fails to Show any Concrete Injury Different From General Public

In order to sue, a party must have standing. And to have standing, a party must show that he or she has suffered a concrete injury different from that suffered by the general public. Preterm has failed to do so.

As for the Written Transfer Agreement Provisions, Preterm offered nothing but speculation that it might be injured in the future. As for the Heartbeat Provisions, Preterm has not been prosecuted, not does it face any credible threat of prosecution because those provisions apply to persons who perform abortions, not clinics. The same for the any possible civil action.

As to the Parenting and Pregnancy Provisions, Preterm concedes it was not injured by them. Even if Preterm had established standing with respect to the other provisions, (which it did not), that standing would not give it standing to seek severance of the Parenting and Pregnancy Provisions.

Bottom Line

“Thus, a party challenging multiple provisions in an enactment of the General Assembly as violating the Single Subject Clause must prove standing as to each provision the party seeks to have severed from the enactment by demonstrating it suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the general public because of each provision,” wrote O’Donnell. Preterm failed to do this.

Chief Justice O’Connor’s Dissent

Chief Justice O’Connor would find Preterm has established standing in this case.

Heartbeat Provisions

The dissent would find that the demonstrated burden of having to facilitate and schedule the extra appointments required by these provisions is enough to confer standing on Preterm. Instead of just a single patient visit, if a heartbeat is detected, there must now be a second appointment, and in some cases, a third, or more. Thus the Heartbeat Provisions clearly require Preterm to use more resources to provide its services, which is a discrete injury.

The Chief also disagrees with the majority’s view that the term “person” in the Heartbeat Provisions applies only to individuals, not corporations. R.C. 1.59 (C) defines person to include corporations, as does considerable federal case law.

Written Transfer Agreement Provisions

It is undisputed that these provisions do apply to Preterm. The dissent chides the majority for not accepting Preterm’s argument that the additional administrative burdens now required under the Written Transfer Agreement Provisions are enough to confer standing, and for requiring some kind of economic injury, when the law does not require that. To the dissent, the requirement that the transfer agreements must be updated every two years and filed with the state instead of the convenience of the previous automatic renewal is enough of a burden to confer standing.

Parenting and Pregnancy Provisions

Preterm conceded that it had not suffered any injury by these provisions, but argued it could proceed with its single-subject challenge as long as it could show injury under one of the other provisions. The dissent criticizes the majority for rejecting this view, and also for addressing this issue at all, after agreeing that Preterm had not been injured by this provision.

“The majority simply does not need to address this issue,” wrote O’Conner. “ In fact, there is more than a little irony in the majority dropping the gavel on this issue given its profession of allegiance to the principles of judicial restraint in Capital Care Network, which involves a nearly identical one-subject-clause challenge to the Written Transfer Agreement Provisions of H.B. 59.”

O’Connor accepts Preterm’s argument that it has suffered enough of an injury to make a single-subject challenge to the budget bill because of the disunity of all three of the contested provisions to the primary purpose of the budget bill. She would affirm the court of appeals, and send the case back so that the trial court could consider the merits of the challenge and determine the appropriate remedy if it finds a violation of the single-subject provision. Then-Justice O’Neill joined this dissent.

Case Syllabus

  1. Because Preterm-Cleveland, Inc., has not proven it suffered or is threatened with direct and concrete injury from the passage of the 2013 state budget bill, it lacks standing to challenge the bill as violating the Single Subject Clause of Article II, Section 15(D) of the Ohio Constitution, and therefore, Governor John R. Kasich and the other state defendants are entitled to judgment as a matter of law
  2. A party challenging multiple provisions in an enactment of the General Assembly as violating the Single Subject Clause of the Ohio Constitution must prove standing as to each provision the party seeks to have severed from the enactment by demonstrating it suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the general public because of each provision
  3. A party lacks standing to challenge a legislative enactment as violating the Single Subject Clause of the Ohio Constitution if the challenged provision applies to other persons but does not cause or threaten direct and concrete injury to the party asserting the challenge.

Concluding Observations

Let’s face it. A majority of the justices on the Supreme Court of Ohio, as presently constituted, (this case was decided before Justice DeGenaro joined the Court—I have no idea her position on this) is not going to do anything helpful to abortion providers.  See the analysis of the merit decision in Capital Care Network of Toledo v. Dept. of Health, Slip Opinion No. 2018-Ohio-440 here, as a prime example.

I foolishly thought Preterm might have produced the bare minimum to show standing to challenge the Written Transfer Agreement and the Heartbeat Provisions. But it was also clear, as I wrote after argument, that the court would “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.”

And I repeat what I wrote after argument—as for the challenge to the Heartbeat Provisions, the idea that a corporation is suddenly not a person is laughable.  It seems to be a person for most everything else these days.

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