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Preterm-Cleveland v. Himes

United States Court of Appeals, Sixth Circuit

October 11, 2019

Preterm-Cleveland; Planned Parenthood Southwest Ohio Region; Women's Med Group Professional Corporation; Roslyn Kade, M.D.; Planned Parenthood of Greater Ohio, Plaintiffs-Appellees,
v.
Lance Himes, Director, Ohio Department of Health; Kim G. Rothermel, Secretary, State Medical Board of Ohio; Bruce R. Saferin, Supervising Member, State Medical Board of Ohio, Defendants-Appellants.

          Argued: January 30, 2019

          Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:18-cv-00109-Timothy S. Black, District Judge.

         ARGUED:

          Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants.

          B. Jessie Hill, ACLU OF OHIO FOUNDATION, INC., Cleveland, Ohio, for Appellees.

         ON BRIEF:

          Steven T. Voigt, Tiffany L. Carwile, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants.

          B. Jessie Hill, Freda J. Levenson, ACLU OF OHIO FOUNDATION, INC., Cleveland, Ohio, Alexa Kolbi-Molinas, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Carrie Y. Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Melissa Cohen, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, New York, for Appellees.

          Michelle K. Terry, AMERICAN CENTER FOR LAW & JUSTICE, Franklin, Tennessee, Misha Tseytlin, STATE OF WISCONSIN DEPARTMENT OF JUSTICE, Madison, Wisconsin, Brandon D. Harper, O'MELVENY & MEYERS LLP, Washington, D.C., Justine Lara Konicki, KOHRMAN JACKSON & KRANTZ, Cleveland, Ohio, Elise Porter, Columbus, Ohio, for Amici Curiae.

          Before: COLE, Chief Judge; BATCHELDER and DONALD, Circuit Judges.

          OPINION

          BERNICE BOUIE DONALD, CIRCUIT JUDGE.

         Before us is an appeal from the district court's grant of a preliminary injunction against Defendants, enjoining them from implementing or enforcing Ohio law H.B. 214. As enacted, H.B. 214 prohibits an abortion provider from performing an abortion with the knowledge that the decision to abort arises from a diagnosis or indication that the unborn child has Down Syndrome. Plaintiffs, various abortion providers, sued Defendants, the state officials responsible for implementing and enforcing Ohio law H.B. 214, alleging H.B. 214 unconstitutionally inhibits pre-viability abortions based on a woman's reason for seeking the abortion. The district court granted the preliminary injunction after concluding that Plaintiffs had shown a likelihood of success on the merits. For the following reasons, we AFFIRM the district court.

         I.

         H.B. 214 was signed into law on December 22, 2017. H.B. 214 amends Section 3701.79 of the Ohio Revised Code and enacts Sections 2919.10 and 2919.101. Section 2919.10 prohibits any person from purposefully performing or inducing or attempting to perform or induce an abortion if the person has knowledge that the pregnant woman is seeking the abortion, in whole or in part, because of any of the following: (1) a test result indicating Down Syndrome in an unborn child; (2) a prenatal diagnosis of Down Syndrome in an unborn child; or (3) "any other reason to believe" that an unborn child has Down Syndrome. Ohio Rev. Code § 2919.10(B). Violation of Section 2919.10 constitutes a fourth-degree felony, punishable by up to 18 months in prison. Ohio Rev. Code §§ 2919.10(C) and 2929.14(A)(4). Section 2919.10 further requires the state medical board to revoke the license of a physician who violates it and makes that physician liable in a civil action for compensatory and exemplary damages. Ohio Rev. Code §§ 2919.10(D), (E).

         Section 2919.101 requires that the performing physician attest in writing that he or she is not aware that fetal Down Syndrome is a reason for the woman's decision to terminate. Ohio Rev. Code § 2919.101(A). Additionally, Section 2919.101 requires the Ohio Department of Health to adopt rules to "assist in compliance with" Section 2919.101 within 90 days of its effective date. Ohio Rev. Code § 2919.101(B).

         On February 15, 2018, Plaintiffs filed their complaint in the district court, alleging that H.B. 214 violates Plaintiffs' patients' rights to liberty and privacy, guaranteed by the Fourteenth Amendment, because the law prohibits pre-viability abortions based on the woman's reason for seeking the care. The complaint sought, inter alia, declaratory judgment that the laws amended and enacted by H.B. 214 are facially unconstitutional. At the time of filing, Plaintiffs also filed a motion for preliminary injunction declaring H.B. 214 unconstitutional and enjoining all Defendants from enforcing or complying with H.B. 214. The district court granted Plaintiffs' motion, finding that under Roe and Casey, a woman is expressly and unambiguously entitled to a pre-viability right to choose whether to terminate or continue her pregnancy.

         II.

         To determine whether to grant a preliminary injunction, trial courts consider and balance four factors: (1) the likelihood that the moving party will prevail on the merits; (2) whether the moving party will be irreparably harmed absent the injunction; (3) the prospect that others will be substantially harmed if the court grants the injunction; and (4) the public interest in granting the injunction. City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc). These factors are not prerequisites requiring satisfaction, but rather "interrelated considerations" that the court must balance. Concerned Pastors for Soc. Action v. Khouri, 844 F.3d 546, 548-49 (6th Cir. 2016). "When a party seeks a preliminary injunction on the basis of a potential constitutional violation, 'the ...


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