Preterm-Cleveland, Inc. v. Kasich (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Preterm-Cleveland, Inc. v. Kasich, Slip Opinion No. 2018-Ohio-441.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-441
PRETERM-CLEVELAND, INC., APPELLEE, v. KASICH, GOVERNOR, ET AL.,
APPELLANTS; O’MALLEY, PROS. ATTY., APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Preterm-Cleveland, Inc. v. Kasich, Slip Opinion No.
2018-Ohio-441.]
Standing—Challenge to constitutionality of certain provisions of 2013
Am.Sub.H.B. No. 59, a biennial budget bill—Party challenging multiple
provisions in an enactment of the General Assembly as violating the Single
Subject Clause, Article II, Section 15(D), Ohio Constitution, must prove
standing as to each provision party seeks to have severed from the
enactment by demonstrating it suffered or is threatened with direct and
concrete injury in manner or degree different from that suffered by general
public because of each provision—Party lacks standing to challenge
legislative enactment as violating the Single Subject Clause, Article II,
Section 15(D), Ohio Constitution, if challenged provision applies to other
persons but does not cause or threaten direct and concrete injury to party
asserting challenge.
*Reporter’s Note: This cause was decided on January 24, 2018, but was released to the public on
February 6, 2018, subsequent to the resignation of Justice William M. O’Neill, who participated in
the decision.
SUPREME COURT OF OHIO
(No. 2016-1252—Submitted September 26, 2017—Decided January 24, 2018.*)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 103103, 2016-Ohio-4859.
_______________
SYLLABUS OF THE COURT
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.
_______________
O’DONNELL, J.
{¶ 1} The challenges originally asserted by Preterm-Cleveland, Inc., in this
case concern whether 2013 Am.Sub.H.B. No. 59, a biennial budget bill, violates
the Single Subject Clause of Article II, Section 15(D) of the Ohio Constitution
because provisions enacted or amended as part of the bill are allegedly unrelated to
the state budget; however, the predicate issue before us concerns whether Preterm-
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Cleveland, Inc., has standing to raise the alleged violations and whether it can seek
severance of provisions in the bill that did not injure it.
{¶ 2} After review, we conclude that 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. Accordingly, we reverse the judgment
of the appellate court and reinstate the judgment of the trial court.
{¶ 3} Governor Kasich, together with the state of Ohio, the Ohio
Department of Health and its director, the Ohio Department of Job and Family
Services and its director, and the State Medical Board appeal from a judgment of
the Eighth District Court of Appeals that reversed a grant of summary judgment in
their favor in an action by Preterm challenging certain provisions of H.B. 59 as
violating the Single Subject Clause of the Ohio Constitution.
{¶ 4} Preterm, a state licensed ambulatory surgical facility that provides
abortion services, filed a complaint in the Cuyahoga County Common Pleas Court
against the parties who have appealed to this court and the Cuyahoga County
Prosecuting Attorney asserting that provisions of H.B. 59 that it denominated as the
Written Transfer Agreement Provisions (R.C. 3702.30, 3702.302 through
3702.308, and 3727.60), the Heartbeat Provisions (R.C. 2317.56, 2919.19 through
2919.193, and 4731.22), and the Parenting and Pregnancy Provisions (R.C.
5101.80, 5101.801, and 5101.804) are unrelated to the state budget and should be
declared void and unenforceable.
Written Transfer Agreement Provisions
{¶ 5} The Written Transfer Agreement Provisions require that 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
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patients from the facility to the hospital when medical care beyond the care that can
be provided at the * * * facility is necessary,” R.C. 3702.303(A), and also prohibit
a “public hospital” from entering into such an agreement with a facility “in which
nontherapeutic abortions are performed or induced,” R.C. 3727.60(B)(1). They
further require the facility to file a copy of the written transfer agreement with the
director of health, R.C. 3702.303(A), update the agreement “every two years and
file a copy of the updated agreement with the director,” R.C. 3702.303(B), and
notify the director of a modification “not later than the business day after the
modification is finalized,” R.C. 3702.307(A). In addition, they state that the
director may not renew a facility’s license unless the “most recent version of the
updated written transfer agreement” on file is “satisfactory” or the director has
granted a variance. R.C. 3702.302(C).
Heartbeat Provisions
{¶ 6} The Heartbeat Provisions require that “[a] person who intends to
perform or induce an abortion * * * determine whether there is a detectable fetal
heartbeat * * *.” R.C. 2919.191(A). Unless there is a medical emergency, “no
person shall perform or induce an abortion * * * prior to determining if the unborn
human individual * * * has a detectable fetal heartbeat.” R.C. 2919.191(B)(1).
“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.” R.C.
2919.191(B)(2). And “[t]he person who determines the presence or absence of a
fetal heartbeat shall record in the pregnant woman’s medical record” the test results
and other information. R.C. 2919.191(A). These provisions also impose a record
keeping requirement on “[a]ny person who performs or induces an abortion”
pursuant to the medical emergency exception. R.C. 2919.191(B)(1). In addition,
they mandate that “[i]f a person who intends to perform or induce an abortion” has
determined there is a detectable fetal heartbeat, the person generally shall not
“perform or induce the abortion” until 24 hours after informing the pregnant woman
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in writing about the heartbeat and the statistical probability of bringing the unborn
human individual to term. R.C. 2919.192(A)(1) and (2).
{¶ 7} The Heartbeat Provisions also provide for either a civil action for
damages or disciplinary action for a failure to comply and make it a crime to violate
their terms. Specifically, R.C. 2919.191(E) states that “[t]he failure of a person to
satisfy the requirements of this section prior to performing or inducing an abortion
* * * may be the basis for either” a “civil action for compensatory and exemplary
damages” or “[d]isciplinary action” by the State Medical Board. And R.C.
2919.192(E) provides that “[w]hoever violates [R.C. 2919.192(A)] 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.”
Parenting and Pregnancy Provisions
{¶ 8} The Parenting and Pregnancy Provisions created the “Ohio parenting
and pregnancy program to provide services for pregnant women and parents or
other relatives caring for children twelve months of age or younger,” R.C.
5101.804(A)(1), and they permit the Ohio Department of Job and Family Services
to offer TANF (federal Temporary Assistance for Needy Families) block grant
funds to certain entities “not involved in or associated with any abortion activities,”
R.C. 5101.804(B)(5); see R.C. 5101.80(A)(4)(f); R.C. 5101.801(B)(3).
Proceedings in the Lower Courts
{¶ 9} All defendants moved to dismiss the complaint for lack of standing,
and Preterm moved for summary judgment. The trial court denied the motions to
dismiss, and the prosecutor then moved for partial summary judgment regarding
Preterm’s request for an injunction to prohibit enforcement of the Parenting and
Pregnancy and the Written Transfer Agreement Provisions, alleging Preterm was
“not subject to any threat of criminal prosecution” by the prosecutor pursuant to
those provisions. The state defendants also moved for summary judgment,
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asserting that Preterm lacked standing, and presented evidence that Preterm had not
received TANF funds before the passage of H.B. 59, that in 2005, Preterm had
executed a written transfer agreement with a private hospital, University Hospitals
Cleveland Medical Center (then University Hospitals of Cleveland), with an
automatic annual renewal provision, and that in 2013, it had entered a new
agreement with that hospital that also contains an automatic annual renewal
provision.
{¶ 10} Preterm submitted an affidavit from its Director of Clinic
Operations, Heather Harrington, who averred that the Written Transfer Agreement
Provisions in H.B. 59 caused Preterm to suffer “new administrative burdens,”
limited the number of hospitals with which it could contract, and placed its license
“at greater risk of loss or revocation than before.” Harrington also averred that the
Heartbeat Provisions caused Preterm to “amend its policies, procedures, and
protocols concerning informed consent,” to undertake new record keeping burdens,
and to “conduct extensive research” because Preterm “fears criminal prosecution
and civil liability” if it does not comply with those provisions.
{¶ 11} The trial court granted the prosecutor’s unopposed motion for partial
summary judgment in connection with the Parenting and Pregnancy and the Written
Transfer Agreement Provisions. It also determined Preterm had no standing to
challenge H.B. 59, so all defendants were entitled to judgment in their favor on the
remaining disputed claims. Thus, the court denied Preterm’s motion for summary
judgment, granted the state defendants’ motion for summary judgment, and sua
sponte granted summary judgment to the prosecutor with respect to the Heartbeat
Provisions.
{¶ 12} On appeal, in a split decision, the appellate court left undisturbed the
grant of summary judgment to the prosecutor regarding the Parenting and
Pregnancy and the Written Transfer Agreement Provisions but reversed the trial
court on the standing issue and remanded the case for further proceedings, stating
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it was “abundantly clear and universally understood” that Preterm was “the
intended target” of the provisions it challenged in H.B. 59. 2016-Ohio-4859, 68
N.E.3d 314, ¶ 23 (8th Dist.). It rejected the state’s claim that the Heartbeat
Provisions regulate physicians, not abortion clinics, because physicians “do not
work alone” and “cannot and do not provide abortion services without the
organized administration, real estate, and medical expertise of the clinic that
provides abortion care, the clinic’s staff, or its equipment.” Id. at ¶ 24. The
appellate court concluded Preterm had demonstrated that it changed protocols and
procedures to comply with the Written Transfer Agreement and the Heartbeat
Provisions “in order to avoid criminal prosecution, civil liability, or losing its
[ambulatory surgical facility] license,” and it held Preterm “established an injury in
at least one of the provisions of [H.B.] 59, and it is the direct target of such
legislation” and thus had “established standing to challenge the legislation” on
single subject grounds. Id. at ¶ 25, 28.
{¶ 13} Judge Stewart dissented and expressed her view that Preterm had
failed to establish it had standing to challenge the constitutionality of H.B. 59
because
it has not shown that it suffered any concrete or direct injury from
the legislation. Most of what Preterm claims as injuries could only
be suffered by potential patients and medical providers who perform
abortions—persons who could have standing if they were parties to
this action. To the extent that Preterm does allege that it has suffered
an injury, the record is clear that those injuries have yet to occur and,
even if they did occur, would not be direct or concrete.
Id. at ¶ 35 (Stewart, J., dissenting).
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{¶ 14} The state defendants appealed, and we accepted the following
proposition of law for review:
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.
Claims in the Supreme Court
{¶ 15} Governor Kasich and the other state defendants assert that in order
to challenge a bill based on a violation of the Single Subject Clause and seek
severance of its provisions, a party must have standing as to each offending
provision, and they contend the appellate court adopted an erroneous rule of law in
concluding Preterm could challenge the Parenting and Pregnancy Provisions that
did not injure it. The state defendants also claim Preterm lacks standing to
challenge the Written Transfer Agreement Provisions because it has had an
agreement with a private hospital for over a decade and only speculates that the
public hospital prohibition might harm it in the future, and Preterm’s other alleged
injuries are “not concrete.” They further contend Preterm lacks standing to
challenge the Heartbeat Provisions because those provisions regulate physicians,
not abortion clinics, and therefore Preterm does not face a credible threat of
prosecution from them and cannot claim standing to sue by voluntarily changing
its practices.
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{¶ 16} Preterm, on the other hand, believes it has standing to bring a single
subject challenge to a bill if it is injured by any provision in the bill and may seek
to sever any provision that destroys the bill’s unity of subject matter, specifically
contending it is the target of the Written Transfer Agreement Provisions, which
have prevented it from relying on its automatically renewable 2005 agreement and
impose new burdens on it to “negotiate, execute, and file with the state a new
written transfer agreement every two years” in order to maintain its license.
Preterm also asserts the requirement that it notify the director of health about
agreement modifications is a new burden, and both the public hospital prohibition
and the local hospital requirement reduce its “options for complying with the
written transfer agreement requirement.”
{¶ 17} In addition, Preterm claims the Heartbeat Provisions required it to
amend its practices and protocols, conduct research, and undertake new
recordkeeping burdens to avoid criminal prosecution and civil liability of itself and
its physicians. Preterm asserts those provisions directly target it, noting they apply
to “persons,” which the Revised Code defines to include corporations; see, e.g.,
R.C. 1.59(C). It also maintains it would be subject to organizational criminal
liability pursuant to R.C. 2901.23(A)(4) if Harrington failed to conform its policies
and protocols to the requirements of the Heartbeat Provisions. Preterm contends
that these injuries provide it with standing to challenge H.B. 59 and entitle it to seek
severance of all the provisions that have injured it and also the Parenting and
Pregnancy Provisions, which it concedes did not injure it.
{¶ 18} The Cuyahoga County Prosecuting Attorney has submitted a brief
asking this court not to disturb the grant of summary judgment in its favor with
respect to the Parenting and Pregnancy and the Written Transfer Agreement
Provisions, which is not contested in this appeal. We decline to address a ruling
that is not challenged on appeal.
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Issue
{¶ 19} The issue presented on this appeal is whether Preterm has standing
to assert a Single Subject Clause challenge to H.B. 59 seeking severance of what it
refers to as the Written Transfer Agreement, the Heartbeat, and the Parenting and
Pregnancy Provisions of that bill.
Law and Analysis
{¶ 20} “The Ohio Constitution expressly requires standing for cases filed in
common pleas courts.” ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St. 3d 520,
2014-Ohio-2382, 13 N.E.3d 1101, ¶ 11. “Article IV, Section 4(B) provides that the
courts of common pleas ‘shall have such original jurisdiction over all justiciable
matters.’ (Emphasis added.) A matter is justiciable only if the complaining party
has standing to sue.” Id.
{¶ 21} In Ohio Trucking Assn. v. Charles, 134 Ohio St. 3d 502, 2012-Ohio-
5679, 983 N.E.2d 1262, this court stated:
“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.”
Id. at ¶ 5, quoting State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio
St.3d 451, 469-470, 715 N.E.2d 1062 (1999).
{¶ 22} This record does not contain any evidence that Preterm has suffered
or is threatened with direct and concrete injury in a manner or degree different from
that suffered by the public in general as a result of the Written Transfer Agreement
Provisions; rather, Preterm offered unsubstantiated, conclusory averments about
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those provisions creating new administrative burdens, limiting the number of
hospitals with which it could have such an agreement, and placing its license “at
greater risk of loss or revocation than before.” And it only speculates that it might
be injured by the provisions if University Hospitals does not renew its agreement
with Preterm. Although a new law might impose administrative burdens that result
in use of additional resources by a business, this record does not reflect that Preterm
incurred or is at risk of incurring new expenses due to the Written Transfer
Agreement Provisions.
{¶ 23} The facts in this case stand in sharp contrast to both Ohio Trucking
and Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F. Supp. 3d 1225,
1235-1236 (D.Colo.2013), aff’d on other grounds sub nom. Little Sisters of the
Poor Home for the Aged, Denver, Colorado v. Burwell, 794 F.3d 1151 (10th
Cir.2015), vacated and remanded on other grounds sub nom. Zubik v. Burwell, ___
U.S. ___, 136 S. Ct. 1557, 194 L. Ed. 2d 696 (2016).
{¶ 24} In Ohio Trucking, this court held the plaintiffs had standing to
challenge a statutory amendment increasing the cost of certified abstracts of driving
records from $2 to $5 because the parties stipulated the plaintiffs purchased over
five million certified abstracts annually and therefore would collectively have paid
about $15 million more in fees per year than they did pursuant to the old statute,
and the parties stipulated that most of the information on the abstracts was available
to the public for free.
{¶ 25} In Little Sisters, the United States District Court for the District of
Colorado held that self-insured religious organizations and their third-party
administrator had standing to challenge regulations implementing a requirement
that group health plans provide women coverage for certain preventative
contraception services without a copayment or deductible because the
organizations had to complete a form to obtain an accommodation and evidence
showed on average, an organization would spend about $41 in labor costs to
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complete the form and a third-party administrator would spend about $44 in labor
costs to process the form. There is no similar evidence of direct or concrete injury
in this case.
{¶ 26} Regarding the Heartbeat Provisions, although Preterm presented
evidence that it altered its conduct due to its fear of criminal and civil liability
pursuant to those provisions, it neither suffered nor is threatened with a direct and
concrete injury because of them. Preterm has not been prosecuted nor does it face
a credible threat of direct prosecution from R.C. 2919.192 because that statute
applies to persons who perform or induce abortions, R.C. 2919.192(A), and as
Judge Stewart observed in her dissenting opinion, Preterm does not actually
perform or induce abortions, so it cannot violate this statute. 2016-Ohio-4859, 68
N.E.3d 314, at ¶ 41. Furthermore, organizational criminal liability for a violation
of the statute pursuant to R.C. 2901.23(A)(4) is dependent on the conduct of third
party physicians against whom R.C. 2919.192 directly operates, and even if such
an injury were sufficiently direct for standing purposes, there is no evidence
physicians will perform abortions at Preterm in violation of the duties imposed on
them by statute or were likely to do so in the absence of the changes Preterm
undertook.
{¶ 27} Lastly, R.C. 2919.191 does not affect Preterm because it provides a
possible civil action for the failure of a person to satisfy its requirements, R.C.
2919.191(E), and it imposes duties only on persons who determine the presence or
absence of a fetal heartbeat and who intend to and do perform or induce abortions,
R.C. 2919.191(A) and (B). None of these provisions apply to Preterm, and 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.
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{¶ 28} Finally, regarding the Parenting and Pregnancy Provisions, Preterm
concedes those provisions did not cause it any injury. Nonetheless, it seeks to have
them severed from H.B. 59. Because Preterm has failed to establish standing with
respect to any provision in H.B. 59 in that it has not evidenced a direct and concrete
injury from any of its provisions, it is unnecessary to address whether Preterm can
seek severance of any provision of H.B. 59 that did not injure it.
{¶ 29} However, even if Preterm had established standing with respect to
either the Written Transfer Agreement or the Heartbeat Provisions, that standing
would not permit it to seek severance of the Parenting and Pregnancy Provisions
because a party seeking to assert a cause of action must establish standing as to
each claim presented.
{¶ 30} The Supreme Court of the United States has stated standing “ ‘is not
dispensed in gross.’ ” Davis v. Fed. Election Comm., 554 U.S. 724, 734, 128 S. Ct.
2759, 171 L. Ed. 2d 737 (2008), quoting Lewis v. Casey, 518 U.S. 343, 358, 116 S. Ct.
2174, 135 L. Ed. 2d 606 (1996), fn. 6. “Rather, ‘a plaintiff must demonstrate
standing for each claim he seeks to press’ and ‘ “for each form of relief” ’ that is
sought.” (Emphasis added.) Id., quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 352, 126 S. Ct. 1854, 164 L. Ed. 2d 589 (2006), quoting Friends of the Earth,
Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S. Ct.
693, 145 L. Ed. 2d 610 (2000). 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. Otherwise the relief requested would not redress an
injury of the party.
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Conclusion
{¶ 31} Preterm has not demonstrated it has suffered or is threatened with
direct and concrete injury in a manner or degree different from that suffered by the
public in general as a result of the enactment of H.B. 59, and therefore, it lacks
standing to present a challenge to H.B. 59 on the basis of a Single Subject Clause
violation or to seek severance of any part of the bill.
{¶ 32} No genuine issues of material fact exist, and Governor Kasich and
the other state defendants are entitled to summary judgment as a matter of law,
because Preterm lacks standing to raise the question whether certain provisions of
H.B. 59 violate the Single Subject Clause of Article II, Section 15(D) of the Ohio
Constitution.
{¶ 33} Accordingly, the judgment of the appellate court is reversed and the
judgment of the trial court is reinstated.
Judgment accordingly.
KENNEDY, FRENCH, FISCHER, and DEWINE, JJ., concur.
O’CONNOR, C.J., dissents, with an opinion joined by O’NEILL, J.
_________________
O’CONNOR, C.J., dissenting.
{¶ 34} The majority’s decision is unusual by any standard. The majority
has failed to address one of the central arguments presented by appellee Preterm-
Cleveland, Inc. (“Preterm”), ignored a basic point of law generally regarded as
well-established and not controversial, and then, surprisingly, ignored a guiding
principle of judicial restraint relied on by the majority in its opinion in a different
case involving some of the same issues presented here. Each of these three
problems materially impacts the result in this case. Together they form an opinion
that fails to plainly apply the law to the facts before us. I therefore dissent.
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I. Heartbeat Provisions
{¶ 35} The Heartbeat Provisions at issue in this case generally require that
before an abortion can be performed, the “person” who intends to perform that
abortion must “determine whether there is a detectable fetal heartbeat of the unborn
human individual the pregnant woman is carrying.” R.C. 2919.191(A). If one is
detected, certain information must be provided to the woman, and the abortion
cannot be performed until “at least twenty-four hours have elapsed since” the
information has been provided. R.C. 2919.192(A).
{¶ 36} The majority holds that Preterm has not been injured by these
provisions, and therefore lacks standing to challenge them under the one-subject
rule of the Ohio Constitution, Article II, Section 15(D), because it finds that the
Heartbeat Provisions apply only to individuals who perform abortions, not to a
clinic such as Preterm.
{¶ 37} The majority ignores Preterm’s argument that the Heartbeat
Provisions injure Preterm because Preterm is required by law to host a second
appointment, and sometimes additional appointments, when a fetal heartbeat is
detected. Importantly, this argument is relevant even if the majority is correct that
the text of the Heartbeat Provisions applies only to individuals. I would find that
the burden of facilitating and hosting additional appointments constitutes a concrete
and particularized injury sufficient to give Preterm standing.
{¶ 38} Preterm presented the trial court with an affidavit of its Director of
Clinical Operations, Heather Harrington, describing the impact of the Heartbeat
Provisions on its work, and it was not contested by the state defendants. Before the
Heartbeat Provisions were enacted, Preterm was able to provide its services in just
a single patient visit. Although Ohio law contains other informed-consent
provisions that imposed waiting requirements before a procedure could be
performed, those provisions could previously be met by a patient through a visit to
another physician; they did not require Preterm to host any appointments before the
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date of the actual procedure. See generally former R.C. 2317.56(B), 2012 Am.Sub.
H.B. No. 487. The Heartbeat Provisions changed that. Now, even under the
majority’s narrow reading of the Heartbeat Provisions, Preterm’s agent is required
to “determine whether there is a detectable fetal heartbeat,” R.C. 2919.191(A), and,
if a heartbeat is detected, wait at least 24 hours after certain information is provided
before performing the abortion, R.C. 2919.192(A).
{¶ 39} The result is that whenever a heartbeat is detected, there must be a
second appointment. In fact, as Preterm points out, in some cases there will need
to be a third visit and perhaps more. Harrington described in her affidavit how
these requirements create “logistical problems for Preterm’s scheduling system and
administrative staff”:
In some cases, a woman is now required to make an extra
trip to Preterm in order to obtain an abortion, not only burdening
Preterm’s patients but also straining its staff’s resources. If a woman
comes to Preterm to receive an abortion and her first ultrasound does
not detect a heartbeat, but a heartbeat is discovered when she returns
for her procedure, she will have to be provided with the opportunity
to see or hear the heartbeat at that visit. Shen must then return again
at least twenty-four hours later for the procedure itself. This results
in unexpected scheduling changes for both the patient and Preterm
staff. In the case of a surgical abortion, it requires a total of three
visits by the patient to Preterm, and in the case of a medical abortion,
a total of five visits.
{¶ 40} One can easily see how these “logistical problems for Preterm’s
scheduling system and administrative staff” are a burden on Preterm. In order to
provide its services, Preterm must consider numerous factors related to scheduling,
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staffing, equipment, and the use of its facility. For example, it must take into
account how many appointments are typically required for each patient seeking
each type of service it offers, which staff members should be available for each
appointment, how long each appointment will take, and any other services or
equipment that will be needed for each visit. Preterm must also consider the various
costs associated with these factors. Finally, Preterm must be able to accommodate
unexpected changes to its scheduling. By requiring an additional appointment
anytime a heartbeat is detected, the Heartbeat Provisions directly impact all of these
aspects of Preterm’s work, requiring Preterm to use more resources to provide its
services.
{¶ 41} The Heartbeat Provisions therefore have a direct effect on Preterm,
not just its staff. I would find that the impact of the Heartbeat Provisions on Preterm
constitutes a sufficient injury to meet the requirements of standing. The majority’s
failure to address this point is error.
{¶ 42} The majority instead concludes that Preterm has not been injured
because the Heartbeat Provisions do not apply to Preterm. I am not convinced,
however, that the term “person,” as used in the Heartbeat Provisions, applies only
to individuals such as doctors and other staff members. Preterm has correctly
pointed out that the Ohio Revised Code defines “person” to include corporations
such as Preterm. See R.C. 2901.01(B)(1)(a)(i) (defining “person” as used in all
provisions of R.C. Title 29 to generally include a corporation); see also R.C.
1.59(C) (“ ‘Person’ includes an individual, corporation, business trust, estate, trust,
partnership, and association”). The legislature may explicitly deviate from this
definition when it wishes to do so, but with respect to the Heartbeat Provisions, it
did not. See Baltimore Ravens, Inc. v. Self-Insuring Emps. Evaluation Bd., 94 Ohio
St.3d 449, 462, 764 N.E.2d 418 (2002) (Cook, J., dissenting) (“Because R.C.
119.01(D) does not define ‘person,’ the default definition of the term [in R.C.
1.59(C)] applies”).
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{¶ 43} Other courts have found standing for clinics to challenge laws
forbidding a “person” from performing certain types of abortion procedures. In
Rhode Island Med. Soc. v. Whitehouse, 66 F. Supp. 2d 288 (D.R.I.1999), for
example, the court found that a clinic had standing to challenge a law providing
that “[n]o person shall knowingly perform a partial birth abortion.” Id. at 299, 304.
The state defendants assert that Whitehouse is not persuasive because a case it cited
for the proposition that clinics have standing to challenge abortion restrictions
lacked analysis. See Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 465
(7th Cir.1998) (stating that a clinic’s standing to challenge a law prohibiting a
“person” from performing a partial-birth abortion is “not open to question”). This
is true enough, but the Whitehouse court nonetheless clearly supported its finding
that the clinic had standing, specifically noting that the statute, the text of which
used only the term “person,” could be challenged by the clinic because the clinic
acted through its “agents.” Whitehouse at 304.
{¶ 44} As a result, I believe Preterm has sufficiently shown that it is
plausibly included within the term “person” as used in the Heartbeat Provisions. Its
conduct is therefore directly regulated and it faces a direct threat of criminal and
civil liability if it does not comply with the challenged statutes. This is clearly
sufficient for standing.
II. Written Transfer Agreement Provisions
{¶ 45} The Written Transfer Agreement Provisions at issue generally
provide that every ambulatory surgical facility (“ASF”) “shall have a written
transfer agreement with a local hospital” specifying a procedure for transferring
patients from the ASF to the hospital when necessary. R.C. 3702.303(A). The
provisions prohibit a “public hospital” from entering into a written transfer
agreement with ASFs that perform nontherapeutic abortions. R.C. 3727.60(B)(1).
They also require ASFs to file a copy of the written transfer agreement with the
director of health, R.C. 3702.303(A), “update” the agreement “every two years and
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file a copy of the updated agreement with the director,” R.C. 3702.303(B), and
notify the director of any modifications within one business day after the
modification is finalized, R.C. 3702.307(A).
{¶ 46} It is undisputed that the Written Transfer Agreement Provisions
apply to Preterm as an ASF. The question here is only whether the requirements
placed on Preterm constitute a concrete and particularized injury.
{¶ 47} Preterm argues that although it had a written transfer agreement in
place with a private hospital prior to the enactment of 2013 Am.Sub.H.B. No. 59
(“H.B. 59”), it has been harmed by the new requirement that it update its written
transfer agreement every two years. Preterm argues that its prior agreement
contained a provision providing for automatic one-year renewals. As a result, no
action was required for Preterm to have the agreement in place and comply with
the law as it existed before H.B. 59. Now, however, the Written Transfer
Agreement Provisions require Preterm to negotiate and execute a new agreement
every two years. Finally, Preterm also argues that it has been harmed by the new
requirement that it “file a copy of the updated agreement with the director” every
two years, R.C. 3702.303(B).
{¶ 48} The majority labels Preterm’s evidence regarding these requirements
as only “unsubstantiated, conclusory averments about * * * new administrative
burdens,” and it declines to accept Preterm’s argument that the administrative
burdens here forced it to use additional resources. Majority opinion at ¶ 22. The
majority acknowledges that “a new law might impose administrative burdens that
result in use of additional resources by a business,” but it then takes the position
that in order for Preterm’s “use of additional resources” to constitute an injury for
standing purposes, Preterm had to show that it “incurred or is at risk of incurring
new expenses.” Id.
{¶ 49} This holding is directly contrary to the basic and uncontroversial
principle that an injury need not be economic in order to establish standing. As the
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United States Supreme Court recognized over 40 years ago, “[i]t has long been clear
that economic injury is not the only kind of injury that can support a plaintiff’s
standing.” Arlington Hts. v. Metro. Hous. Dev. Corp., 429 U.S. 252, 262-263, 97
S. Ct. 555, 50 L. Ed. 2d 450 (1977); see also United States v. Students Challenging
Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686, 93 S. Ct. 2405, 37
L. Ed. 2d 254 (1973) (stating that standing is “not confined to those who could show
‘economic harm’ ”); Valley Forge Christian College v. Ams. United for Separation
of Church & State, Inc., 454 U.S. 464, 486, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982)
(“standing may be predicated on noneconomic injury”); Frank v. United States, 78
F.3d 815, 823-824 (2d Cir.1996), vacated and remanded on other grounds, 521
U.S. 1114, 117 S. Ct. 2501, 138 L. Ed. 2d 1007 (1997) (noting that “it is familiar law
that injury in the context of standing is not limited to economic harm” and finding
that administrative burdens of compliance with a gun-control statute constituted
injury for purposes of standing). For years, state and federal courts across the
country have applied this principle without difficulty. The majority’s decision to
ignore this well-established principle and require Preterm to show economic harm
to establish standing is remarkable.
{¶ 50} The Third Circuit’s 2010 decision in Lozano v. Hazleton, 620 F.3d
170 (3d Cir.2010), vacated and remanded on other grounds sub nom. Hazelton v.
Lozano, 563 U.S. 1030, 131 S. Ct. 2958, 180 L. Ed. 2d 243 (2011), exemplifies the
flaw in the majority’s rationale. The plaintiffs in Lozano were required by a city
ordinance to file an affidavit with their municipal government affirming simply that
they did not knowingly employ individuals who lacked legal immigration status in
the United States.1 Id. at 177-178, 184, 186. The plaintiffs did not present evidence
1
This is similar to the burden present in Little Sisters of the Poor Home for the Aged v. Sebelius, 6
F. Supp. 3d 1225 (D.Colo.2013), aff’d on other grounds sub nom. Little Sisters of the Poor Home for
the Aged, Denver, Colorado v. Burwell, 794 F.3d 1151 (10th Cir.2015), vacated and remanded on
other grounds sub nom. Zubik v. Burwell, ___ U.S. ___, 136 S. Ct. 1557, 194 L. Ed. 2d 696 (2016).
The plaintiffs in that case were required to file a form to obtain an exemption from a government
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concerning the monetary cost of creating or presenting the affidavit, but the Third
Circuit found an injury sufficient to confer standing anyway. Id. at 186-187.
Though the burden of creating the affidavit of compliance was “relatively small,”
it was “sufficient for standing purposes.” Id. at 186.
{¶ 51} The state defendants attempt to distinguish Lozano by claiming that
the plaintiffs in that case “had to do more than just submit an affidavit; they were
required to investigate the work authorization status of prospective contractors.”
This attempt is not at all convincing. The lead plaintiff in the case was a landlord
who occasionally hired contractors to perform repairs on his rental property.
Lozano at 180. A landlord such as the plaintiff could have hired the same contractor
for every repair—say, a relative or a childhood friend—and it would not have been
a significant burden to investigate the work-authorization status of that relative or
friend and then file an affidavit of compliance with the municipality. Rather than
considering details of that type, the Lozano court found that the lead plaintiff had
standing to challenge the ordinance under the Due Process and Equal Protection
Clauses of the United States Constitution based on the burden the affidavit
requirement placed upon him. Id. at 186-187.
{¶ 52} Lozano is consistent with the familiar precedent that an injury need
not be monumental; it must only be “perceptible.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 566, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). An injury can even
be intangible. Spokeo, Inc. v. Robins, __ U.S. __, 136 S. Ct. 1540, 1549, 194
L. Ed. 2d 635 (2016) (“ ‘Concrete’ is not * * * necessarily synonymous with
‘tangible.’ Although tangible injuries are perhaps easier to recognize, we have
mandate. Id. at 1231-1232, 1235. Although the district court found that the plaintiffs had standing,
id. at 1235-1236, the majority here mistakenly distinguishes that decision by pointing out that the
plaintiffs had presented evidence of the economic cost of filing the form, thereby doubling down on
its rogue position that economic injury is required. While cost evidence may quantify the injury
suffered, it does not somehow enhance the magnitude of the injury, and it is not a necessary
requirement that must be met in every case to establish standing.
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confirmed in many of our previous cases that intangible injuries can nevertheless
be concrete”). The important point is that whether the injury is large or small it
must be “concrete and particularized.” Lujan at 560.
{¶ 53} There is no reason to depart from the well-established and
uncontroversial principle that an injury need not be economic in nature in order to
confer standing. The majority’s insistence on doing so is a clear mistake. Rather
than follow this misguided approach, I would find that Preterm has suffered an
injury under the Written Transfer Agreement Provisions because it is now required
to update its agreement every two years and file a copy with the state. The burden
of these requirements is at least as heavy as that present in Lozano. Though
“relatively small,” it is sufficient to confer standing. Lozano at 186.
{¶ 54} In fact, business owners across Ohio understand the nature of the
burden here. It is not uncommon for businesses to rely on stable relationships with
certain suppliers or service providers based on terms that do not change from year
to year. Within the medical context, for example, a private hospital or a doctor’s
office may rely on a steady supply of gauze, regular maintenance for its equipment,
or a license for software on its computer systems. Because of the ongoing nature
of these basic needs, businesses sometimes choose to enter into automatically
renewing contracts, rather than fixed-term contracts that require time and attention
to renew on a regular basis. Importantly, they do so because they find them to be
more efficient—and they find renewing contracts to be a burden. If the owner of a
hospital or a small doctor’s office who chose to utilize automatically renewing
contracts for the services described above were suddenly barred from that practice,
she would no doubt find it to be a burden to have to enter into the same agreement
over and over again. Yet that is exactly what the majority finds to be no burden at
all in this case. The only difference here is in the service that Preterm provides and
the type of service agreement it must update, and there is no reason why Preterm’s
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standing should be judged differently from any other medical provider or business
based on those facts.
{¶ 55} For these reasons, I would find that H.B. 59’s requirement that
Preterm update its written transfer agreement every two years and file that
agreement with the state is a “concrete and particularized” burden sufficient to
confer standing. Lujan, 504 U.S. at 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351.
III. Parenting and Pregnancy Provisions
{¶ 56} The Parenting and Pregnancy Provisions at issue create a program
providing services for pregnant women and individuals caring for young children,
and they permit the use of block grants from the federal government for this
program by certain entities. R.C. 5101.804(A)(1) and (B). Entities “involved in or
associated with any abortion activities” are not permitted to receive these funds.
R.C. 5101.804(B)(5); see also R.C. 5101.80(A)(4)(f); R.C. 5101.801(B)(3).
{¶ 57} Preterm concedes that these provisions do not cause it any injury
because it has neither sought nor received any such funds in the past and it is not
likely to do so in the future. The majority recognizes this, and it recognizes that
because it holds Preterm has not been injured by the Heartbeat Provisions or the
Written Transfer Agreement Provisions “it is unnecessary to address” an additional
argument made by Preterm concerning its one-subject challenge. Majority opinion
at ¶ 28. That argument would need to be considered only if the court had found an
injury under at least one of the challenged provisions. At this point, then, traditional
principles of judicial restraint call for the majority to go no further. Not content to
leave the matter there, however, the majority goes on to decide the one-subject issue
anyway.
{¶ 58} The one-subject clause of the Ohio Constitution, Article II, Section
15(D), provides that “[n]o bill shall contain more than one subject, which shall be
clearly expressed in its title.” Generally speaking, a law violates the one-subject
rule when “various topics contained therein lack a common purpose or relationship
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so that there is no discernible practical, rational or legitimate reason for combining
the provisions in one Act.” Beagle v. Walden, 78 Ohio St. 3d 59, 62, 676 N.E.2d
506 (1997); see also Capital Care Network of Toledo v. Ohio Dept. of Health, ___
Ohio St.3d ___, 2018-Ohio-440, ___ N.E.3d ___, ¶ 65-77 (O’Connor, C.J.,
dissenting) (discussing history and purpose of one-subject rule).
{¶ 59} Preterm argues that even though it has not suffered an injury under
the Parenting and Pregnancy Provisions, it can proceed with its one-subject
challenge as long as it shows injury under one of the other sets of provisions. The
state defendants argue that Preterm must show an injury from each of the three sets
of provisions in order to have standing to obtain severance of those provisions.
{¶ 60} Seemingly agreeing with the state defendants, the majority declares
that “even if” it had found an injury under the Heartbeat Provisions or the Written
Transfer Agreement Provisions, it would nonetheless reject Preterm’s argument in
this regard. Majority opinion at ¶ 26. Significantly, the majority announces a new
rule for one-subject challenges in Ohio:
[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. Otherwise
the relief requested would not redress an injury of the party.
Id. at ¶ 30. The majority even states the point as syllabus law. Id. at paragraph two
of the syllabus.
{¶ 61} The majority simply does not need to address this issue. In fact,
there is more than a little irony in the majority dropping the gavel on this issue
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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. After deciding the
necessary issues in Capital Care Network, the majority opinion declines to address
others, quoting then Judge John Roberts on judicial restraint: “ ‘[I]f it is not
necessary to decide more, it is necessary not to decide more.” ’ Id., ___ Ohio St.3d
___, 2018-Ohio-440, ___ N.E.3d ___, at ¶ 31, quoting PDK Laboratories, Inc. v.
United States Drug Enforcement Admin., 362 F.3d 786, 799 (D.C.Cir.2004)
(Roberts, J., concurring in part and concurring in judgment). If the majority adheres
to this principle in Capital Care Network, it should do so here as well.
{¶ 62} Because I believe Preterm has suffered an injury under both the
Heartbeat Provisions and the Written Transfer Agreement Provisions, I would go
on to consider this argument. Given the majority’s disposition of this case, I will
state my views only in summary form.
{¶ 63} Preterm argues that the unity of purpose of H.B. 59 has been broken
by the presence of the Heartbeat Provisions, the Written Transfer Agreement
Provisions, and the Parenting and Pregnancy Provisions. As it alleged in its
complaint:
H.B. 59 addresses at least four distinct topics, serving four
distinct purposes: (1) budget and appropriations; (2) regulation of
abortion and abortion providers; (3) regulation of health care
facilities; and (4) creation of a new parenting and pregnancy support
program.
{¶ 64} I believe that Preterm has established that it has suffered an injury
sufficient to enable it to proceed in its one-subject challenge arguing that these
abortion-related provisions depart from the primary purpose of the budget and
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appropriations bill. I would therefore affirm the judgment of the Eighth District
Court of Appeals and remand the cause so that the trial court could further consider
the merits of the challenge and determine the appropriate remedy if it finds a
violation of the one-subject rule.
{¶ 65} The majority’s new syllabus statement of law highlights the dangers
of deciding too much. In particular, the majority’s use of the vague term
“provisions” in paragraph two of the syllabus is problematic. While Article II,
Section 15(D) of the Ohio Constitution requires the focus to be on whether a bill
contains more than one “subject,” the majority has casually introduced the term
“provisions,” without any definition. This change will create more problems than
it solves.
{¶ 66} For these reasons, I dissent.
O’NEILL, J., concurs in the foregoing opinion.
_________________
Case Western Reserve University School of Law and B. Jessie Hill;
Kohrman Jackson & Krantz, L.L.P., Susan O. Scheutzow, and Justine Lara
Konicki; American Civil Liberties Union of Ohio Foundation, Elizabeth Bonham,
and Freda J. Levenson; Elise Porter; and Roger Baldwin Foundation of ACLU, Inc.,
and Lorie A. Chaiten, for appellee Preterm-Cleveland, Inc.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Stephen P. Carney, Deputy Solicitor, and Ryan L. Richardson and Tiffany L.
Carwile, Assistant Attorneys General, for appellants.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Charles
E. Hannan, Assistant Prosecuting Attorney, for appellee Michael C. O’Malley,
Cuyahoga County Prosecuting Attorney.
_________________
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