Preterm-Cleveland, Inc. v. Kasich (Slip Opinion)
102 N.E.3d 461
Ohio2018Background
- Preterm‑Cleveland, an ambulatory surgical facility providing abortions, sued to invalidate portions of 2013 Am.Sub.H.B. No. 59 (H.B. 59) as violating Ohio’s Single Subject Clause, targeting: Written Transfer Agreement provisions, Heartbeat provisions, and Parenting/Pregnancy provisions.
- Written Transfer Agreement provisions require ASFs to maintain, update biennially, and file written transfer agreements with a local hospital and bar public hospitals from contracting with facilities performing nontherapeutic abortions.
- Heartbeat provisions require a determination of a detectable fetal heartbeat before an abortion, certain disclosures, waiting periods, recordkeeping, and create civil/disciplinary and criminal penalties for violations.
- Parenting/Pregnancy provisions create a program using TANF block grants and bar entities “involved in or associated with any abortion activities” from receiving funds; Preterm conceded it had not sought such funds.
- Trial court granted summary judgment for defendants for lack of standing; the Eighth District reversed as to standing (split opinion). Ohio Supreme Court granted review, focusing on whether Preterm had standing as to each provision and whether a plaintiff must have standing for each provision it seeks severed.
Issues
| Issue | Plaintiff's Argument (Preterm) | Defendant's Argument (Kasich et al.) | Held |
|---|---|---|---|
| Does Preterm have standing to challenge H.B. 59 under the Single Subject Clause? | Preterm says it suffered concrete burdens from the Written Transfer and Heartbeat provisions (administrative burdens, changed protocols, recordkeeping, risk of liability), so it may challenge the bill and seek severance. | Defendants say Preterm failed to show direct, concrete, particularized injury: it never received TANF funds, had an existing transfer agreement with automatic renewal, and the Heartbeat provisions regulate physicians (not clinics), so there is no credible threat of prosecution. | Court held Preterm lacks standing: it did not prove direct and concrete injury distinct from the public for any challenged provision, so defendants entitled to summary judgment. |
| Can a plaintiff challenging multiple provisions in one enactment rely on standing from one provision to seek severance of unrelated provisions? | Preterm contends injury from any provision suffices to seek severance of unrelated offending provisions to remedy a single‑subject violation. | Defendants argue plaintiff must have standing as to each provision it seeks severed because relief must redress plaintiff's injury. | Court held a plaintiff must prove standing as to each provision it seeks severed—standing is not ‘dispensed in gross.’ |
| Do the Heartbeat provisions create a credible threat of criminal or civil liability to Preterm (a clinic) sufficient for standing? | Preterm asserts the provisions apply to “persons” (which includes corporations) and that the requirements force extra visits, scheduling burdens, and potential organizational liability. | Defendants argue the criminal statute targets persons who "perform or induce" abortions (i.e., physicians), not the clinic, so Preterm faces no direct threat of prosecution; organizational liability is speculative. | Court held Preterm lacks standing because the statutory targets are persons who perform/induce abortions (physicians) and there is no credible evidence physicians will violate the statute; alleged burdens are speculative. |
| Do the Written Transfer Agreement provisions cause direct, concrete injury to Preterm? | Preterm says the biennial update/filing requirement and limits on hospital partners imposed new administrative burdens and impaired automatic‑renewal reliance. | Defendants presented evidence Preterm had a longstanding agreement (with automatic renewal) and no proof of incurred or imminent expenses from H.B. 59; claimed harms were conclusory. | Court held Preterm’s averments were speculative and not shown to cause direct/concrete injury; no standing. |
Key Cases Cited
- ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520 (2014) (Article IV §4(B) requires standing for common pleas matters)
- Ohio Trucking Assn. v. Charles, 134 Ohio St.3d 502 (2012) (standing to challenge legislation requires direct, concrete, particularized injury distinct from public generally)
- State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451 (1999) (standing elements for constitutional challenges)
- Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F. Supp. 3d 1225 (D. Colo. 2013) (administrative costs of regulatory compliance can support standing)
- Davis v. Federal Election Comm’n, 554 U.S. 724 (2008) (standing must be shown for each claim and form of relief; standing is not dispensed in gross)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (injury for standing must be concrete and particularized)
- Lozano v. Hazleton, 620 F.3d 170 (3d Cir. 2010) (minimal administrative burdens from ordinance sufficient for standing)