Preterm-Cleveland v. Yost

[Cite as Preterm-Cleveland v. Yost, 2022-Ohio-4540.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
PRETERM-CLEVELAND, : APPEAL NO. C-220504
TRIAL NO. A-2203203
PLANNED PARENTHOOD :
SOUTHWEST OHIO REGION,
: O P I N I O N.
PLANNED PARENTHOOD OF
GREATER OHIO, :
WOMEN’S MED GROUP :
PROFESSIONAL CORP.,
:
NORTHEAST OHIO WOMEN’S
CENTER, LLC, d.b.a. TOLEDO :
WOMEN’S CENTER,
:
and
:
SHARON LINER, M.D.,
:
Plaintiffs-Appellees,
:
VS. :
:
DAVID YOST,
ATTORNEY GENERAL OF OHIO, :
BRUCE VANDERHOFF, :
DIRECTOR, OHIO DEPARTMENT OF
HEALTH, :
KIM ROTHERMEL, :
SECRETARY, STATE MEDICAL
BOARD OF OHIO, :
:
and
:
OHIO FIRST DISTRICT COURT OF APPEALS
:
BRUCE SAFERIN,
SUPERVISING MEMBER, STATE :
MEDICAL BOARD OF OHIO,
:
Defendants-Appellants.
:
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: December 16, 2022
ACLU of Ohio Foundation, B. Jessie Hill, Freda J. Levenson and Rebecca Kendis,
Planned Parenthood Federation of America, Melissa Cohen, Meagan Burrows,
American Civil Liberties Union, Ryan Mendias, Michelle Nicole Diamond, Peter
Neiman, Wilmer Cutler Pickering Hale and Dorr LLP, Alan E. Shoenfeld, Davina
Pujari, Christopher A. Rheinheimer and Allyson Slater, for Plaintiffs-Appellees,
David Yost, Attorney General of Ohio, Benjamin M. Flowers, Solicitor General,
Stephen P. Carney, Deputy Solicitor General, and Amanda L. Narog and Andrew D.
McCartney, Assistant Attorneys General, for Defendants-Appellants.
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OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} In the wake of the United States Supreme Court’s decision in Dobbs v.
Jackson Women’s Health Org., 142 S.Ct. 2228, 213 L.Ed.2d 545 (2022), much of the
attention on the question of abortion has shifted to state courts and state constitutions.
This case involves the fate of a state statute that largely bans abortion access in Ohio.
The trial court entered a preliminary injunction that barred the state from enforcing
the statute, designed to preserve the status quo until it could convene a trial on the
merits. The state appealed this decision, but we find that it appealed prematurely.
Our jurisdiction as an appellate court is limited both by our constitution and relevant
state statutes. Consistent with the wealth of authority in Ohio concerning injunctions
and appellate jurisdiction, we conclude that we lack jurisdiction over the state’s
appeal. We accordingly dismiss this appeal, but of course any aggrieved party can
appeal after the trial court issues its final judgment in the case. Our answer on the
merits of this dispute and the underlying constitutionality of the statute (even though
many may wish that we decide the merits of this case now) must await another day.
I.
{¶2} Ohio’s so-called “Heartbeat Act” (“S.B. 23”) generally proscribes
abortions after a fetal heartbeat is detected. R.C. 2919.19-2919.1913; 2019 Sub.S.B.
No. 23. The Ohio General Assembly enacted S.B. 23 in April 2019. Under S.B. 23, a
healthcare provider who intends to perform an abortion must first determine whether
there is embryonic or fetal cardiac activity. If the provider detects cardiac activity, S.B.
23 renders it a crime to “caus[e] or abet[] the termination of” the pregnancy. R.C.
2919.195(A). S.B. 23 also carves out two limited exceptions. After the detection of
cardiac activity, providers may perform abortions that they determine are necessary
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OHIO FIRST DISTRICT COURT OF APPEALS
(1) to preserve the pregnant woman’s life, or (2) to prevent a “serious risk of the
substantial and irreversible impairment of a major bodily function.” R.C. 2919.195(B).
Moreover, the act applies only to intrauterine pregnancies; it does not prohibit doctors
from aborting tubal or ectopic pregnancies. R.C. 2919.191.
{¶3} In September 2022, plaintiffs-appellees—several abortion clinics and a
doctor—filed a complaint, seeking a preliminary (and, ultimately a permanent)
injunction regarding the enforcement of S.B. 23, naming various state officials
(collectively, “the state”) as defendants (now appellants). But this action does not exist
in a vacuum; rather, it followed on the heels of two related proceedings.
{¶4} In July 2019, a federal district court preliminarily enjoined S.B. 23
before it went into effect, based on Roe v. Wade, 410 U.S. 113, 153-154, 93 S.Ct. 705,
35 L.Ed.2d 147 (1973), and Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833, 876, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Preterm-Cleveland
v. Yost, 394 F.Supp.3d 796, 800-801 (S.D.Ohio 2019). On June 24, 2022, following
the United States Supreme Court’s decision in Dobbs, 142 S.Ct. 2228, 213 L.Ed.2d 545,
however, the district court vacated that preliminary injunction and S.B. 23 went into
effect. Preterm-Cleveland v. Yost, S.D.Ohio No. 1:19-cv-00360, 2022 U.S. Dist.
LEXIS 112700 (June 24, 2022).
{¶5} Plaintiffs immediately petitioned the Supreme Court of Ohio for a writ
of mandamus on June 29, 2022, see State ex rel. Preterm-Cleveland v. Yost, 167 Ohio
St.3d 1468, 2022-Ohio-2558, 191 N.E.3d 443. The mandamus action sought a
prohibition on the enforcement of S.B. 23 and a declaration that S.B. 23 was
unconstitutional under the Ohio Constitution. Plaintiffs voluntarily dismissed the
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OHIO FIRST DISTRICT COURT OF APPEALS
mandamus action in September 2022, when at least one of the plaintiff clinics faced
imminent closure due to the enforcement of S.B. 23.
{¶6} Subsequently, on September 2, 2022, plaintiffs filed their complaint in
the Hamilton County Court of Common Pleas seeking declaratory relief and a
permanent injunction enjoining the enforcement of S.B. 23. Plaintiffs also filed a
motion for a temporary restraining order followed by a preliminary injunction. On
September 14, the trial court entered a 14-day temporary restraining order, which it
later extended to October 12. Following an evidentiary hearing on an expedited basis,
the trial court issued a preliminary injunction enjoining the enforcement of S.B. 23
and prohibiting the state from later taking any enforcement action premised on a
violation of S.B. 23 that occurred while the act was in effect.
{¶7} The trial court’s order emphasized the provisional nature of the
injunction, explaining, “The Court’s findings at this stage are based on the limited
record before the Court. This matter shall be set for a case management conference at
which time the Court shall issue a scheduling order providing the parties with
adequate time to conduct full discovery in preparation for trial.” The trial court also
noted that the preliminary injunction hearing afforded only “limited expedited
discovery in preparation for the hearing,” clarifying that the injunction at issue was
granted in anticipation of more fulsome discovery preceding its ultimate
determination of whether to grant a permanent injunction enjoining the enforcement
of S.B. 23.
{¶8} Nevertheless, the state immediately appealed the order granting the
preliminary injunction. Upon review of the state’s appeal, this court sua sponte raised
a question regarding appellate jurisdiction, and on October 28, this court ordered the
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OHIO FIRST DISTRICT COURT OF APPEALS
parties to submit briefs addressing whether the preliminary injunction order
constitutes a final appealable order under Ohio law. At this time, we do not weigh the
merits of the case; rather, we must determine the threshold question of whether, under
Ohio law, we may exercise jurisdiction over the state’s appeal of the preliminary
injunction order.
II.
{¶9} Appellate courts are courts of limited jurisdiction, and we must honor
the jurisdictional constraints imposed by our constitution and state statutes. Pursuant
to Article IV, Section 3(B)(2) of the Ohio Constitution, appellate courts possess
jurisdiction to “review and affirm, modify, or reverse * * * final orders of the courts of
record inferior to the court of appeals within the district * * *.” “An appellate court
can review only final orders, and without a final order, an appellate court has no
jurisdiction.” Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-
Ohio-4530, 998 N.E.2d 437, ¶ 18, quoting Supportive Solutions, L.L.C. v. Electronic
Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490, ¶ 10.
“If a lower court’s order is not final, then an appellate court does not have jurisdiction
to review the matter, and the matter must be dismissed.” Taxiputinbay, LLC v. Village
of Put-In-Bay, 6th Dist. Ottawa No. OT-20-021, 2021-Ohio-191, ¶ 7, quoting Gen. Acc.
Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). As an
appellate court, we are obliged to consider our jurisdiction even if neither party raises
the issue. See State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776
N.E.2d 101, ¶ 4 (“R.C. 2505.03 * * * limits the appellate jurisdiction of courts * * * to
the review of final orders, judgments, or decrees. This jurisdictional issue cannot be
waived and may be raised by [an appellate court] sua sponte.”); see also J.B. v. R.B.,
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OHIO FIRST DISTRICT COURT OF APPEALS
9th Dist. Medina No. 14CA0044-M, 2015-Ohio-3808, ¶ 4, citing Whitaker-Merrell Co.
v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 185, 280 N.E.2d 922 (1972) (“This Court
is obligated to raise sua sponte questions related to our jurisdiction.”).
{¶10} The question of whether an order constitutes a “final order” that we can
review obligates us to consider the language of the governing statute as well as how
Ohio courts have interpreted this language. R.C. 2505.02 serves as our guide in this
inquiry. “For an order to be final and appealable, it must meet the requirements of
R.C. 2505.02(B).” In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶
5. The parties agree that the only subsection of R.C. 2505.02 at issue here is R.C.
2505.02(B)(4), which provides:
(B) An order is a final order that may be reviewed, affirmed, modified,
or reversed, with or without retrial, when it is one of the following:
***
(4) An order that grants or denies a provisional remedy and to which
both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the
appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.
{¶11} The threshold question in determining whether an order constitutes a
final appealable order under R.C. 2505.02(B)(4) is whether the order “grants or denies
a provisional remedy.” See State v. Muncie, 91 Ohio St.3d 440, 447, 746 N.E.2d 10927
OHIO FIRST DISTRICT COURT OF APPEALS
(2001) (“To satisfy the definition of ‘final order’ contained in R.C. 2505.02(B)(4), the
order at issue must either grant or deny a provisional remedy.”). R.C. 2505.02(A)(3)
answers that question for the case at hand, defining a “provisional remedy” as “a
proceeding ancillary to an action, including * * * a proceeding for a preliminary
injunction.” In the present case, the appealed-from order granted a preliminary
injunction; therefore, this case squarely falls within the scope of R.C. 2505.02(B)(4).
{¶12} The provisional remedy must then satisfy both prongs of R.C.
2505.02(B)(4) to constitute a final appealable order. See Muncie at 450-452;
Empower Aviation, LLC v. Butler Cty. Bd. of Commrs., 185 Ohio App.3d 477, 2009-
Ohio-6331, 924 N.E.2d 862, ¶ 10 (1st Dist.); Deyerle v. City of Perrysburg, 6th Dist.
Wood No. WD-03-063, 2004-Ohio-4273, ¶ 13 (“[A]n order denying or granting a
preliminary injunction is a final appealable order if it satisfies the two prongs of R.C.
2505.02(B)(4).”). Only if the order meets both requirements can we exercise
jurisdiction.
{¶13} The first prong requires that the order effectively determines the action
with respect to the provisional remedy and prevents a judgment in favor of the
appealing party with respect to the provisional remedy for an order to be deemed final
under R.C. 2505.02(B)(4). R.C. 2505.02(B)(4)(a). However, the statute on its face
gives courts little guidance for ascertaining what “determines the action” or “prevents
a judgment” with respect to the provisional remedy, and Ohio caselaw on the topic is
limited. In fact, characterizing any provisional remedy—such as a preliminary
injunction—as determining the action or preventing a judgment strikes us as at odds
with the very concept of provisional remedies, which are, by their nature, temporary
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OHIO FIRST DISTRICT COURT OF APPEALS
and interlocutory.1 While this requirement may pose a conceptual conundrum, in
practice, the Ohio Supreme Court has explained that an order satisfies the requirement
if “there existed nothing further for the trial court to decide with respect to the
provisional remedy.” In re Special Docket No. 73958, 115 Ohio St.3d 425, 431, 2007-
Ohio-5268, 875 N.E.2d 596; see Muncie at 450-451.
{¶14} Here, the trial court’s decision is, as best we can tell, final with respect
to issuing the preliminary injunction. By that, we mean that the trial court gave no
indication that its decision was tentative or contingent in any manner. While a trial
court generally retains the ability to revisit interlocutory rulings, under the Ohio
Supreme Court’s interpretation of R.C. 2505.02(B)(4)(a), we conclude that the state
has satisfied this requirement. See In re Special Docket No. 73958 at 430-431;
Muncie, 91 Ohio St.3d at 450-451, 746 N.E.2d 1092. We accordingly proceed to the
next step of the R.C. 2505.02(B)(4) analysis.
{¶15} To satisfy the second prong of R.C. 2505.02(B)(4), the appealing party
must show that, if it cannot appeal now, it will be deprived of “a meaningful or effective
remedy” if it must await “an appeal following final judgment as to all proceedings.”
R.C. 2505.02(B)(4)(b). This requirement exists in recognition that, “in spite of courts’
interest in avoiding piecemeal litigation, occasions may arise in which a party seeking
to appeal from an interlocutory order would have no adequate remedy from the effects
of that order on appeal from final judgment.” Muncie at 451. In other words, “[i]n
some instances, ‘the proverbial bell cannot be unrung and an appeal after final
1 As explained in Painter and Pollis, Ohio Appellate Practice, Section 2:20, at 163 (2021-2022 Ed.),
it appears that the General Assembly included this language to track R.C. 2505.02(B)(1), which
involves decisions that truly “determine[] the action and prevent[] a judgment.” Appropriating
such language in the provisional remedy context seems to be the source of confusion.
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OHIO FIRST DISTRICT COURT OF APPEALS
judgment on the merits will not rectify the damage’ suffered by the appealing party.”
Id., quoting Gibson-Myers & Assocs. v. Pearce, 9th Dist. Summit No. 19358, 1999
Ohio App. LEXIS 5010, *7-8 (Oct. 27, 1999).
{¶16} Before we apply Ohio caselaw to the case at hand, we pause to address
the federal authority featured by the state in its jurisdictional brief. The state seeks to
convince us that it lacks a “meaningful or effective remedy” if it cannot appeal now by
pointing to various federal cases. For example, the state refers to Thompson v.
DeWine, 976 F.3d 610 (6th Cir.2020), and Abbott v. Perez, 138 S.Ct. 2305, 201
L.Ed.2d 714 (2018), to establish that every order enjoining a valid state law inflicts
“serious[] and irreparabl[e] harm” on a state. See Thompson at 619. However, we find
the state’s references to federal authorities in the preliminary injunction context
unpersuasive. Under federal law, orders granting a preliminary injunction are always
appealable. 28 U.S.C. 1292(a)(1) (“[T]he courts of appeals shall have jurisdiction of
appeals from * * * [i]nterlocutory orders of the district courts of the United States * *
* granting, continuing, modifying, refusing or dissolving injunctions * * *.”). In
contrast, as explained above, Ohio law permits the appeal of orders granting
preliminary injunctions only in limited circumstances. Accordingly, we find the
federal cases relied upon by the state inapposite, as they shed no light on Ohio’s
statutory regime.
{¶17} Turning back to the Ohio standard, to understand how this “meaningful
or effective remedy” requirement applies, we consider three different strands of Ohio
caselaw: (1) cases holding that a preliminary injunction does not meet the standard of
R.C. 2505.02(B)(4)(b) when the plaintiff ultimately seeks a permanent injunction; (2)
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OHIO FIRST DISTRICT COURT OF APPEALS
cases recognizing that preservation of the status quo generally fails to satisfy the
requirements of finality; and (3) cases illustrating the “unringing” of the bell concept.
{¶18} We begin with the first consideration—the fact that “Ohio courts
generally hold that the second prong of R.C. 2505.02(B)(4) cannot be met when the
provisional remedy is a preliminary injunction and the ultimate relief sought in the
lawsuit is a permanent injunction.” Clean Energy Future, LLC v. Clean Energy
Future-Lordstown, LLC, 11th Dist. Trumbull No. 2017-T-0110, 2017-Ohio-9350, ¶ 7;
see Hootman v. Zock, 11th Dist. Ashtabula No. 2007-A-0063, 2007-Ohio-5619, ¶ 15;
Katherine’s Collection, Inc. v. Kleski, 9th Dist. Summit No. 26477, 2013-Ohio-1530,
¶ 17 (“This Court has held that where, as here, the provisional remedy affected the type
of claims and relief that are at the heart of the underlying litigation, the order
determining the provisional remedy is not immediately appealable.”); Jacob v.
Youngstown Ohio Hosp. Co., LLC, 7th Dist. Mahoning No. 11 MA 193, 2012-Ohio-
1302, ¶ 24.
{¶19} The logic animating these decisions is that an appeal after issuance of
the permanent injunction will provide the meaningful and effective remedy. See
Fatica Renovations, LLC v. Bridge, 11th Dist. Geauga No. 2017-G-0106, 2017-Ohio-
1419, ¶ 15 (“[G]enerally, if a permanent injunction is sought, this will allow for a
remedy at the conclusion of the proceedings.”). And this case helps illustrate the
point—the court issued its preliminary injunction on a limited record and on an
expedited basis, and it was poised to shift gears swiftly to resolve the permanent
injunction. Yes, some delay would occur between the preliminary and permanent
injunction, but that delay must be measured against providing the appellate court a
complete record on appeal and avoiding piecemeal appeals. Applying that logic, Ohio
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OHIO FIRST DISTRICT COURT OF APPEALS
courts have consistently recognized that parties will have their meaningful and
effective remedy after issuance of the permanent injunction (or they will prevail at the
permanent injunction phase and secure effective relief through that manner).
{¶20} Here, although the trial court granted a preliminary injunction
enjoining S.B. 23, plaintiffs ultimately seek relief in the form of a permanent
injunction on the enforcement of S.B. 23 and a declaration that S.B. 23 is
unconstitutional under the Ohio Constitution, bringing this case squarely within the
scope of the rule delineated above. The arguments that plaintiffs marshalled in favor
of the preliminary injunction—that they are being deprived of their fundamental rights
under the Ohio Constitution, causing them to suffer constitutional, medical,
emotional, and other harms—echo the arguments they frame in their complaint in
support of an eventual permanent injunction. Because the provisional remedy is a
preliminary injunction and plaintiffs ultimately seek a permanent injunction to enjoin
the same act on the same reasoning, it supports the conclusion that the second prong
of R.C. 2505.02(B)(4) is not met in this case.
{¶21} This point is bolstered when we turn next to the second strand of Ohio
caselaw that guides our analysis: “[C]ourts have found that ‘a preliminary injunction
which acts to maintain the status quo pending a ruling on the merits is not a final
appealable order under R.C. 2505.02.’ ” Quinlivan v. H.E.A.T. Total Facility
Solutions, Inc., 6th Dist. Lucas No. L-10-1058, 2010-Ohio-1603, ¶ 5, quoting
Hootman, 11th Dist. Ashtabula No. 2007-A-0063, 2007-Ohio-5619, at ¶ 15, and E.
Cleveland Firefighters, IAFF Local 500 v. City of E. Cleveland, 8th Dist. Cuyahoga
No. 88273, 2007-Ohio-1447, ¶ 5; see In re Estate of Reinhard, 12th Dist. Madison No.
CA2019-11-028, 2020-Ohio-3409, ¶ 17. In the context of preliminary injunctions,
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OHIO FIRST DISTRICT COURT OF APPEALS
various Ohio appellate districts have defined “status quo” as the “last, actual,
peaceable, uncontested status which preceded the pending controversy.”
Taxiputinbay, 6th Dist. Ottawa No. OT-20-021, 2021-Ohio-191, at ¶ 17, quoting
Quinlivan at ¶ 5, and Hootman at ¶ 16.
{¶22} Ohio courts generally do not permit immediate appellate review of
preliminary injunctions that preserve the status quo because, if the status quo is being
preserved, the aggrieved party will have an opportunity to obtain its “meaningful or
effective remedy” if a permanent injunction is issued. In other words, if the status quo
doesn’t change—the party isn’t truly harmed (at least in the manner contemplated by
R.C. 2505.02(B)(4)(b)). Needless to say, any party losing a preliminary injunction
decision can muster some claim of immediate harm, but the statute keeps our eyes on
the “meaningful or effective remedy” standard. And with respect to preliminary
injunction orders that preserve the status quo, Ohio courts have spoken.
{¶23} The last legally uncontested status in Ohio with regard to laws
regulating abortions was, as the trial court aptly recognized in its order, “the status
quo of legal and safe abortion access that has been in place in Ohio for nearly five
decades.” Indeed, S.B. 23 has been challenged in various lawsuits even before its
effective date. As the state points out, S.B. 23 was briefly in effect between the
injunction issued by the federal court and the preliminary injunction issued by the trial
court below. The fact that this interlude allowed S.B. 23 to be effective does not alter
the status quo assessment because Ohio law confirms that the “status quo” is that
which precedes the enforcement of a challenged law (particularly given the pendency
of other litigation seeking similar relief before the federal court and the Ohio Supreme
Court). See Taxiputinbay at ¶ 17; Quinlivan at ¶ 5; Hootman at ¶ 16. The trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
here determined that its preliminary injunction would preserve the status quo, and—
consistent with the caselaw above—we have no basis to question that determination.
Accordingly, the status quo consideration supports a conclusion that the state will
have a meaningful and effective remedy following final judgment, because the
preliminary injunction maintains the precontroversy status quo.
{¶24} As to the third thread of jurisprudence, courts have recognized that an
immediate appeal might be warranted if “the proverbial bell cannot be unrung.”
Muncie, 91 Ohio St.3d at 451, 746 N.E.2d 1092. But courts have emphasized the
narrowness of this inquiry, lest an expansive view swallow the rule: “Ordinarily, an
order issuing or denying a preliminary injunction is not a final appealable order.”
Ankrom v. Hageman, 10th Dist. Franklin No. 06AP-735, 2007-Ohio-5092, ¶ 8,
quoting LCP Holding Co. v. Taylor, 158 Ohio App.3d 546, 2004-Ohio-5324, 817
N.E.2d 439, ¶ 18 (11th Dist.). Cases considering this context have focused on situations
that would irreparably change the party’s position between provisional remedy and
final judgment. Classic scenarios include divulgence of attorney-client privileged
communications or disclosure of other confidential information, Cleveland Clinic
Found. v. Levin, 120 Ohio St.3d 1210, 2008-Ohio-6197, 898 N.E.2d 589, ¶ 12-13,
Cuervo v. Snell, 10th Dist. Franklin Nos. 99AP-1442, 99AP-1443 and 99AP-1458,
2000 Ohio App. LEXIS 4404, *6-7 (Sept. 26, 2000), and Premier Health Care Servs.
v. Schneiderman, 2d Dist. Montgomery No. 18795, 2001 Ohio App. LEXIS 5170, *4-9
(Aug. 21, 2001), forced administration of psychotropic medication to an incompetent
criminal defendant, Muncie at 452, and cases implicating the right against double
jeopardy, State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 53-
59. This vein of cases tends to generally involve information which, once disclosed,
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OHIO FIRST DISTRICT COURT OF APPEALS
would be “irretrievably lost,” Cleveland Clinic Found. at ¶ 13, “particularly severe”
interferences with an individual’s liberty interest, Muncie at 452, or even “the potential
for serious or * * * fatal side effects,” id., and other cases in which, absent an immediate
appeal, the right cannot be vindicated. Anderson at ¶ 53-59.
{¶25} We cannot fit the state’s claimed harm within these confines. The state
delineates three purported forms of harm that it believes it will suffer in the absence
of the right to an immediate appeal. First, the state contends that it and its citizens
will suffer inherent harm every day that it is barred from giving effect to S.B. 23
(presumably because a state always suffers harm when its laws are enjoined). Second,
the state submits that it is being irreparably harmed because the injunction allows the
performance of an irreversible procedure—abortion—in circumstances not permitted
by S.B. 23. And third, according to the state, because abortions are irreversible, every
day the injunction remains in force irreparably undermines the state’s efforts to
protect its citizens. At bottom, however, the state focuses on harm to third-parties
rather than on harm to itself, which colors its jurisdictional analysis. See Mentor Way
Real Estate Partnership v. Hertanu, 8th Dist. Cuyahoga No. 103267, 2016-Ohio-
4692, ¶ 11 (dismissing the appeal for want of a final appealable order upon concluding
that harm to a third party would not deny appellant a meaningful and effective
remedy).
{¶26} But, as the caselaw described above demonstrates, just because a party
can fashion a claim of harm does not mean it will be deprived of a “meaningful or
effective remedy” by waiting to “appeal following final judgment as to all proceedings.”
See R.C. 2505.02(B)(4)(b). Indeed, the state’s argument is tantamount to a conclusion
that any preliminary injunction of a state statute warrants an immediate appeal. We
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OHIO FIRST DISTRICT COURT OF APPEALS
are unwilling to go that far, nor does extant Ohio law. More importantly, it is difficult
to square the alarmist claims in the state’s jurisdictional brief with the fact that S.B. 23
had already been enjoined for nearly three years by the federal court. The state will
have a “meaningful or effective remedy” after the conclusion of the permanent
injunction hearing.
{¶27} Confirming our determination, the state’s defense of appellate
jurisdiction is notably sparse on Ohio caselaw, and the cases it does cite are
distinguishable from the controversy at hand.2 Two of the cases to which the state
cites deal with concrete and imminent harms, such as the risk of trade secret
misappropriation, Premier Health Care Servs., 2d Dist. Montgomery No. 18795, 2001
Ohio App. LEXIS 5170, at *4-9, or where certain funds would otherwise be distributed
to other parties before the trial court could determine to whom they rightfully
belonged, AIDS Taskforce of Greater Cleveland v. Ohio Dept. of Health, 2018-Ohio-
2727, 116 N.E.3d 874, ¶ 17-18 (8th Dist.). The state did not refer to any cases that
specifically support any of its three claims of harm in the absence of immediate appeal,
and conspicuously absent are any cases where a third-party’s rights are factored into
the calculus. The state also relied on Puruczky v. Corsi, 2018-Ohio-1335, 110 N.E.3d
73, ¶ 15 (8th Dist.). But this case can be distinguished because it involves an
infringement of a party’s constitutional right to free speech, and preliminary
injunctions restraining free speech fall under a separate category of order requiring
immediate appellate review. Id., quoting Connor Group v. Raney, 2d Dist.
Montgomery No. 26653, 2016-Ohio-2959, ¶ 1 (“[A] preliminary injunction that
2The state also cites Village of Newburgh Hts. v. State, Slip Opinion No. 2022-Ohio-1642, but that
case offers no analysis of the R.C. 2505.02(B)(4) factors, so it provides no guidance to us.
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OHIO FIRST DISTRICT COURT OF APPEALS
constitutes a prior restraint on speech requires immediate appellate review.”). We
therefore hold that the state has failed to establish that the “proverbial bell cannot be
unrung,” see Muncie, 91 Ohio St.3d at 451, 746 N.E.2d 1092, or that an appeal on the
final merits will not be sufficient.
{¶28} In the case at hand, the trial court issued a preliminary injunction to
preserve the rights (of access to abortion care in Ohio) of the party in whose favor the
preliminary injunction was granted until such time as the matter could finally be
decided on the merits. At that time, if a permanent injunction is granted, the state will
have a meaningful and effective remedy—the right to an appeal. The trial court issued
a preliminary injunction designed to maintain the status quo, and the state fails to
successfully demonstrate that it will be deprived of a meaningful or effective remedy
if it cannot appeal now. Accordingly, we hold that the trial court’s order granting
plaintiffs’ motion for a preliminary injunction does not satisfy the requirements of a
final appealable order under R.C. 2505.02(B)(4).
* * *
{¶29} We appreciate that many citizens may be interested in the resolution of
the merits of this appeal, but we cannot expand our jurisdiction simply because the
case is a significant one. In light of the foregoing analysis, we must dismiss this appeal
for lack of a final appealable order.
Appeal dismissed.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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