Preterm-Cleveland; Planned Parenthood Southwest Ohio Region; Women's Med Group Professional Corporation; Roslyn Kade, M.D.; Planned Parenthood of Greater Ohio, Plaintiffs-Appellees,
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
from the United States District Court for the Southern
District of Ohio at Cincinnati. No. 1:18-cv-00109-Timothy S.
Black, District Judge.
Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellants.
Jessie Hill, ACLU OF OHIO FOUNDATION, INC., Cleveland, Ohio,
T. Voigt, Tiffany L. Carwile, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellants.
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
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
BERNICE BOUIE DONALD, CIRCUIT JUDGE.
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.
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),
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 §
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
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 ...