[Cite as Preterm-Cleveland, Inc. v. Kasich,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103103

PRETERM-CLEVELAND, INC.

PLAINTIFF-APPELLANT

vs.

GOVERNOR JOHN R. KASICH, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-815214

BEFORE: McCormack, J., E.A. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: July 7, 2016 ATTORNEYS FOR APPELLANT

Beatrice Jessie Hill Case Western Reserve University School of Law 11075 East Blvd. Cleveland, OH 44106

Elizabeth Bonham Freda J. Levenson American Civil Liberties Union of Ohio 4506 Chester Ave. Cleveland, OH 44103

Lorie A. Chaiten Roger Baldwin Foundation of ACLU, Inc. 180 North Michigan Ave. Suite 2300 Chicago, IL 60601

Justine L. Konicki Susan O. Scheutzow Kohrman, Jackson & Krantz P.L.L. One Cleveland Center, 20th Floor 1375 East Ninth St. Cleveland, OH 44114

Jennifer Lee American Civil Liberties Union of Ohio 125 Broad St. New York, NY 10004 ATTORNEYS FOR APPELLEES

For John R. Kasich, et al.

Mike De Wine Ohio Attorney General

By: Tiffany L. Carwile Ryan L. Richardson Assistant Attorneys General Constitutional Offices Section 30 East Broad St., 16th Floor Columbus, OH 43215

For Timothy J. McGinty

Timothy J. McGinty Cuyahoga County Prosecutor

By: Charles E. Hannan Assistant County Prosecutor 1200 Ontario St., 8th Floor Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Plaintiff-appellant, Preterm-Cleveland, Inc. (“Preterm”), appeals the trial

court’s granting summary judgment for defendants and denying Preterm’s summary

judgment motion. For the reasons that follow, we reverse the decision of the trial court

as it relates to defendants’ motion for summary judgment concerning standing and

remand to the trial court for further proceedings consistent with this opinion.

Procedural History and Substantive Facts

{¶2} Preterm is a state-licensed ambulatory surgical facility (“ASF”) that

provides reproductive health services, including family planning and abortion procedures

and care. On October 9, 2013, Preterm filed a complaint seeking injunctive and

declaratory relief against the following: Governor John R. Kasich; the state of Ohio; the

Ohio Department of Health; Theodore E. Wymslo, M.D.; the State Medical Board of

Ohio; its members Anita M. Steinbergh, D.O.; Kris Ramprasad, M.D.; J. Craig

Strafford, M.D., M.P.H., F.A.C.O.G.; Mark A. Bechtel, M.D.; Michael L. Gonidakis;

Donald R. Kenney, Sr.; Bruce R. Saferin, D.P.M.; Sushil M. Sethi, M.D., M.P.H.,

F.A.C.S.; Amol Soin, M.D., M.B.A.; Lance A. Talmage, M.D.; the Ohio Department of

Job and Family Services; Michael B. Colbert; and Cuyahoga County Prosecutor Timothy

J. McGinty.

{¶3} In its complaint, Preterm alleges that the 2014-2015 Ohio Budget Bill,

Am.Sub.H.B.No. 59 (“HB 59”) violated the one-subject rule of the Ohio Constitution, Article II, Section 15(D). Specifically, it alleges that three provisions of HB 59 — the

“heartbeat provisions,” the “written transfer agreement provisions,” and the “parenting

and pregnancy provisions” — have no relation to appropriations and therefore destroy the

bill’s unity of purpose.

{¶4} Initially, defendants moved to dismiss Preterm’s complaint on the grounds

that Preterm lacked standing to challenge HB 59. The trial court denied defendants’

motion, finding that Preterm was “threatened with a direct and concrete injury by the

enactment of the written transfer agreement provisions, which regulate licensing of an

ASF in a restrictive and onerous manner.” Thereafter, Preterm moved for summary

judgment, claiming that HB 59 violated the one-subject rule of the Ohio constitution as a

matter of law. In response, Prosecutor McGinty moved for partial summary judgment

regarding the noncriminal provisions of the budget bill (“written transfer agreement

provisions” and “parenting and pregnancy provisions”), which Preterm did not oppose.

The remaining defendants also moved for summary judgment against Preterm, claiming

that Preterm lacked standing to challenge HB 59.

{¶5} On May 18, 2015, following a hearing on summary judgment, the trial court

granted defendants’ motion regarding standing, finding that Preterm lacked standing to

challenge each of the relevant provisions of HB 59. The trial court explained that its

review upon summary judgment was much broader and therefore permitted consideration

of a wider range of admissible evidence. The court also granted Prosecutor McGinty’s

partial motion for summary judgment regarding the “parenting and pregnancy provisions” and the “written transfer agreement provisions,” finding such claims unopposed and

conceded by Preterm. Finally, determining that Preterm lacked standing, the trial court

declined to address the merits of Preterm’s motion for summary judgment as it related to

a violation of the one-subject rule.

{¶6} Preterm now appeals the trial court’s judgment, assigning the following errors

for our review:

I. The trial court erred in granting summary judgment for the defendants based on its erroneous conclusion that Preterm lacked standing.

II. The trial court erred in denying Preterm’s motion for summary

judgment, which demonstrated as a matter of law, that HB 59

blatantly violates the one-subject rule of the Ohio constitution.

Summary Judgment

{¶7} Summary judgment is appropriate when: (1) there is no genuine issue of

material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after

construing the evidence most favorably for the party against whom the motion is made,

reasonable minds can reach only a conclusion that is adverse to the nonmoving party.

Civ.R. 56(C). Once a moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the moving party’s pleadings; rather, it has a

reciprocal burden of setting forth specific facts demonstrating that there is a genuine

triable issue. State ex rel. Zimmerman v. Tompkins,

,

(1996). {¶8} We review the trial court’s judgment de novo. Grafton v. Ohio Edison Co.,

,

(1996).

Standing

{¶9} It is well established in Ohio that before a court can properly consider the

merits of a claim, the party seeking relief must establish standing to sue. State ex rel.

Walgate v. Kasich, Slip Opinion No.

; Ohio Contrs. Assn. v.

Bicking,

,

(1994). Under traditional standing

principles, a plaintiff must show that it has suffered “‘(1) an injury that is (2) fairly

traceable to the defendant’s allegedly unlawful conduct, and (3) likely to be redressed by

the requested relief.’” ProgressOhio.org, Inc. v. JobsOhio,

,

,

, quoting Moore v. Middletown,

,

,

.

{¶10} The injury need not be large or economic, but it must be “palpable.”

LULAC v. Kasich, 10th Dist. Franklin No. 10AP-639,

, ¶ 21; see State ex

rel. Ohio Academy of Trial Lawyers v. Sheward,

,

(1999) (“any injury, however small, is sufficient for purposes of private-action

standing * * *”). The injury, however, may not be merely speculative. LULAC.

{¶11} When challenging the constitutionality of a legislative enactment, the party

must demonstrate that 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.”

. “[P]rivate citizens may not restrain official acts when they fail to allege and prove damage to themselves different in character from that sustained by the public

generally.” State ex rel. Masterson v. Ohio State Racing Comm.,

, 368,

(1954), citing 39 Ohio Jurisprudence, 22, Section 12; 52 American

Jurisprudence, 3, Section 3. However, “[n]otwithstanding the general requirement for

injury, standing is a self-imposed judicial rule of restraint, and courts ‘are free to dispense

with the requirement for injury where the public interest so demands.’” Akron Metro.

Hous. Auth. Bd. of Trustees v. State, 10th Dist. Franklin No. 07AP-738,

, quoting

.

{¶12} When a party challenging the legality of a government action is “an object

of the action, * * * there is ordinarily little question” that the action caused injury and a

judgment preventing the action will redress it. Clifton v. Blanchester,

,

,

, ¶ 16; Planned Parenthood Sw. Ohio Region v.

Dewine,

(S.D.Ohio 2014) (plaintiffs had standing to challenge a

statute where they were “indisputably targeted” by the statute); Navegar, Inc. v. United

States,

,

(1997) (finding it unlikely that the

legislature would enact laws targeting a specific industry if it had no intention of applying

those laws to the individual participants in that particular industry).

{¶13} A party in a one-subject rule challenge, who alleges injury from a particular

provision of the legislation, has standing where it challenges the enactment of the

legislation in its entirety. Akron Metro. Hous. Auth. Bd. of Trustees v. State, 10th Dist.

Franklin No. 07AP-738,

. “Because [the party] alleged injury resulting from the enactment of the legislation, [it has] a direct interest in the challenged

legislation that is adverse to the legal interests of the state and gives rise to an actual

controversy for the courts to decide.”

To deny standing in a case where a party

alleged injury by anything less than all of the provisions of the statute it challenged

“would insulate legislation from one-subject constitutional scrutiny unless a coalition of

plaintiffs could be assembled to cover the wide variety of subjects amassed in a single

piece of legislation.”

{¶14} Whether a party has established standing is a question of law, which this

court reviews de novo. Moore v. Middletown,

,

,

, citing Cuyahoga Cty. Bd. of Commrs. v. State,

,

,

.

{¶15} Here, Preterm contends that it has standing to challenge HB 59, particularly

as it relates to the “heartbeat provisions,” the “written transfer agreement provisions,” and

the “parenting and pregnancy provisions.” Specifically, Preterm provides that it has

suffered direct and concrete injury that will be redressed by the relief sought.

Additionally, Preterm claims that, as an abortion provider and an ASF, it is a direct target

of the statute and therefore has standing to challenge the same.

{¶16} In support of its position, Preterm submits the affidavit of its Director of

Clinic Operations, Heather Harrington. Harrington is responsible for the creation and

implementation of policies and protocols for the day-to-day operation of Preterm, including abortion procedures. In her affidavit, Harrington states that Preterm has been

burdened and injured as a result of the passage of HB 59.

{¶17} In accordance with the “heartbeat provisions,” a person who intends to

perform or induce an abortion on a pregnant woman shall, at least 24 hours prior to the

procedure, determine whether there is a detectable fetal heartbeat of the “unborn human

individual”; give the pregnant woman the option to view or hear the fetal heartbeat;

record the estimated gestational age of the “unborn human individual,” the method of

testing, the date and time of the test, and the results of the test; and inform the pregnant

woman of the statistical probability of carrying the pregnancy to term. See R.C.

2919.191; 2919.192; 2317.56. With certain exceptions, no person shall perform an

abortion before determining whether there is a detectable heartbeat.

The failure to

satisfy the provisions’ requirements may be the basis for civil liability, criminal

prosecution, or disciplinary actions by the state medical board. Id.; R.C. 4731.22.

{¶18} Harrington avers that in order to comply with the heartbeat provisions,

Preterm has been forced to amend its policies, procedures, and protocols concerning

informed consent. In particular, Preterm conducted extensive research to determine the

“statistical probability of bringing the fetus to term based on the gestational age of the

fetus”; it created a new policy entitled “Fetal Heartbeat and Probability,” incorporating

the newly mandated protocols, which also involved creating a new form for placement

into patient files; it has undertaken additional patient record-keeping responsibilities not

previously necessary; and it abandoned some of its prior practices regarding the manner in which Preterm provided services to its patients. Additionally, Harrington provides

that the heartbeat provisions have placed an additional strain on its staff, requiring

unexpected scheduling changes for staff and patients. For example, if a heartbeat is

detected when a pregnant woman returns for her procedure (after her initial visit), Preterm

must provide the patient an opportunity to view or hear the heartbeat and schedule

another appointment for 24 hours later for the procedure. According to Harrington, in

some cases, depending on the type of procedure, Preterm must now schedule the patient

for three to five visits. Finally, Preterm alleges that it is subject to criminal prosecution

and/or civil liability if it does not comply with the heartbeat provisions.

{¶19} The “written transfer agreement provisions” require all ASFs to maintain a

written transfer agreement with a local hospital that specifies the procedures for transfer

of patients from the facility to the hospital when medical care beyond the care provided at

the ASF is necessary, including emergency situations; the agreement must be updated

every two years; and the ASF must file a copy of the agreement with the director of

health. R.C. 3702.303. The director of health conducts an inspection of the facility

each time the facility submits an application for license renewal. R.C. 3702.302. An

ASF’s license will not be renewed if, upon inspection, the director determines that the

ASF has not complied with “all quality standards established by the director” or the most

recent version of the updated written transfer agreement is not “satisfactory.”

Additionally, the statute requires the ASF to notify the director within one business day if

the facility modifies any provision of its transfer agreement, within 48 hours if it modifies its operating procedures or protocols, or within one week if it becomes aware of

disciplinary action that may affect a consulting physician. R.C. 3702.307. Finally, the

statute prohibits public hospitals from entering into agreements with facilities that provide

nontherapeutic abortions. R.C. 3727.60(B).

{¶20} In her affidavit, Harrington asserts that the written transfer agreement

provisions impose new burdens on Preterm. Specifically, Preterm must update the

existing agreement and file a copy of the updated agreement every two years, whereas

previously, Preterm maintained an agreement for a one-year term that was automatically

renewable. The filing of the agreement is now separate from the filing of its ASF

license renewal application and is a new administrative requirement. Harrington

submits, additionally, that the new provisions limit the number of hospitals with which

Preterm can contract.

{¶21} The “parenting and pregnancy provisions” create a new program that

provides services for pregnant women and parents caring for their children, including

promoting childbirth, parenting, and alternatives to abortion. R.C. 5101.804. The

program authorizes the allocation of federal temporary assistance to needy families.

The funded entities are prohibited from providing abortion counseling, referrals to

abortion clinics, performing abortion-related medical procedures, or engaging in

pro-abortion advertisement. R.C. 5101.804(B) and (C). Although Preterm initially

included the parenting and pregnancy provisions as one of the “offending provisions” of

HB 59, Harrington’s affidavit fails to address such provisions. Thus, Preterm apparently concedes that it has not been injured by the provisions. Nonetheless, Preterm maintains

that the injury it has suffered, or will suffer, by and through the heartbeat and written

transfer agreement provisions, is sufficient for purposes of establishing standing.

{¶22} Defendants respond that Preterm lacks standing to challenge HB 59 where it

cannot demonstrate that it was directly injured by the parenting and pregnancy provisions

and the injury claimed by the heartbeat provisions and the written transfer agreement

provisions was merely “hypothetical.” Defendants further argue that Preterm cannot

claim injury as a direct target because this theory does not relieve Preterm of the

obligation to establish an injury.

{¶23} Here, in construing the evidence most favorably for Preterm, as we are

required to do upon consideration of a summary judgment motion, we find that Preterm

has established standing sufficient to challenge HB 59. It is abundantly clear and

universally understood regardless of where the observer stands on the core issues that

Preterm has been the intended target of certain regulatory provisions of HB 59, referred to

as the “heartbeat provisions,” the “written transfer agreement provisions,” and the

“parenting and pregnancy provisions.” The heartbeat provisions, in particular, regulate

the nature and duration of procedures followed by a person who intends to perform or

induce an abortion on a pregnant woman, including procedures regarding heartbeat

detection, viewing or listening to the detected heartbeat, follow-up appointments, and

informed consent, in general. {¶24} Defendants argue that the heartbeat provisions regulate and impose

obligations on the physicians who perform the abortion, rather than the clinic.

Physicians, however, do not work alone. Physicians 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. It necessarily

follows that such provisions that target the person performing the abortion likewise target

the clinic where the abortion is ultimately performed. It is a site and medical team. To

argue that the provisions exclusively target just an individual performing the actual

abortion procedure and not also the clinic where the abortion services are provided is

most disingenuous. Every woman and man in Ohio understands that reality, basic truth.

{¶25} Preterm has demonstrated that it has changed its protocols and procedures in

order to comply with the new provisions in order to avoid criminal prosecution, civil

liability, or losing its ASF license. Specifically, Preterm conducted extensive research,

created a new “Fetal Heartbeat and Probability” policy, created a new form detailing the

new requirements, and incurred additional staffing issues. Additionally, Preterm

provides that it is now mandated to update anew its written transfer agreement every two

years, file the transfer agreement with the director of health, and separately file its ASF

license renewal application.

{¶26} Although Preterm’s injury is seemingly minimal, it is sufficiently concrete

and particularized for standing purposes. See LULAC, 10th Dist. Franklin No.

10AP-639,

(finding a concrete injury, however slight, where an individual gathered the additional requested information, drove to the deputy registrar, stood in line,

provided the requested information, and payed an additional $3.50 processing fee); Little

Sisters of the Poor Home for the Aged v. Sebelius, 6 F. Supp.3d 1225 (D.Colo. 2013)

(finding an annual cost of $44 for preparation of a self-certification form sufficient for

standing); Natl. Collegiate Athletic Assn. v. Califano,

, 1386 (10th

Cir. 1980) (“out-of-pocket cost to a business of obeying a new rule of government” is

sufficient to constitute an injury in fact); Hydro Res. Inc. v. EPA,

(10th Cir. 2010) (business costs of undertaking permitting process are injury in fact).

And Preterm’s injury need not be quantified or limited to economic harm. See Frank v.

United States,

(2d Cir. 1996), rev’d on other grounds,

,

,

(1997) (the sheriff’s additional workload resulting from

compliance with a gun-control statute constituted injury for standing purposes).

{¶27} Moreover, Preterm’s changing of policies, protocols, and procedures out of

fear of sanctions, or in order to avoid liability, is sufficient for establishing standing.

The legislature would not enact laws targeting a specific industry if it had no intention of

applying those laws to the individual participants in that particular industry. Navegar,

Inc. v. United States,

, 1000 D.C.Cir. 1996). Thus, where there is a “threat

of prosecution,” Preterm has established standing. Id. at 1001.

{¶28} And because Preterm has established an injury in at least one of the

provisions of HB 59, and it is the direct target of such legislation, we find that Preterm

has established standing to challenge the legislation as a violation of the one-subject rule. {¶29} We note that this case has come to us because the constitutional remedies of

due process were thwarted. There are techniques very much recognized in law, such as

raising the issue of a party’s standing to sue, that ultimately can help ensure fairness and

relevant decision making. Precluding litigants from moving forward with their claims

when they lack legitimate standing has its place. Conversely, prematurely blocking

parties in interest from their right to speak to their General Assembly or having their day

in court because the subject matter they bring forward is inherently divisive, volatile,

repulsive, or just plain difficult is another matter. Here, appellant Preterm found the

statehouse door closed to them, thereby providing no opportunity for public deliberation

and debate on these provisions. Now it finds the courthouse door shut, thus denying it

access to court relief. The right of the people to petition their governments to seek

redress and to access its courts was enshrined in our state and federal constitutions. It is

precisely that which the founders of our constitutions sought to protect. They clearly

envisioned a scenario such as this.

{¶30} It is not by happenstance that we have maintained domestic tranquility in

America for most of our nearly 250 years in large part because Americans have had

access to the highly effective remedies of relief the three branches of government are

mandated to provide. It is no remedy to an aggrieved party to have keys inserted and

doors locked to the statehouse and courthouse. As Americans, we breathe more deeply,

healthily, when we listen to each other, consider opposite points of view, and then decide

in the open. {¶31} This conflict needs space for resolution. Appropriate access to the courts

is unquestionably a fundamental constitutional right. The courts provide legal recourse

by which citizens may redress their grievances, regardless of the uncomfortable nature of

the subject matter. In ensuring that Preterm have its day in court, we reinforce this most

basic tenet of our system of jurisprudence.

{¶32} Accordingly, Preterm’s first assignment of error is sustained.

{¶33} Because the trial court did not reach the merits of Preterm’s claim that HB

59 violated the one-subject rule of the Ohio constitution, we decline to address Preterm’s

second assignment of error and remand to the trial court for further proceedings

consistent with this opinion.

{¶34} This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

It is ordered that appellant recover of said appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., CONCURS; MELODY J. STEWART, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)

MELODY J. STEWART, J., DISSENTING:

{¶35} I do not believe that Preterm has established its standing to challenge the

constitutionality of HB 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. For this reason, I

would find that the court did not err by concluding that Preterm lacked standing and

properly dismissed the complaint.

I. Standing

{¶36} Preterm’s declaratory judgment action asked the court to declare the

2014-2015 Ohio Budget Bill, 2013 Am.Sub.H.B.No. 59 (“HB 59”) unconstitutional

because it contained abortion-related provisions that went beyond the scope of a budget

bill — a claimed violation of Article II, Section 15(D) of the Ohio Constitution, known as

the “one-subject” rule.

{¶37} The case or controversy limitation that underpins notions of standing is

“built on separation-of-powers principles [and] serves to prevent the judicial process from

being used to usurp the powers of the political branches.” Clapper v. Amnesty Internatl.

USA, 568 U.S.___,

,

(2013). When a private litigant attacks the constitutionality of a legislative enactment, standing requires a

showing that (1) the litigant has suffered or is threatened with direct and concrete injury

in a manner or degree different from that suffered by the public in general, (2) that the

law in question has caused the injury, and (3) that the relief requested will redress the

injury. State ex rel. Ohio Academy of Trial Lawyers v. Sheward,

,

(1999). Because the injury that a private litigant must show

in this context is an injury or threat of an injury in a manner or degree different from that

suffered by the public in general, Willoughby Hills v. C.C. Bar’s Sahara, Inc.,

,

(1992), the injury must be “concrete” or “direct” in a way

that goes beyond abstract or speculative harm. Torres v. Cleveland, 8th Dist. Cuyahoga

No. 80695,

, ¶ 26.

II. Heartbeat Provisions

{¶38} The court correctly held that Preterm lacked standing for most of the

allegations of the complaint directed to the heartbeat provisions because those provisions

applied only to persons performing abortions and patients. And because violations of the

heartbeat provisions could only affect physicians, there is no merit to Preterm’s assertion

that it could suffer injury by way of criminal prosecution for violations committed by

physicians. In addition, the court did not err by finding that Preterm’s assertion that it

could be subjected to future criminal prosecution was too speculative to show an injury

sufficient to establish standing. Finally, Preterm’s argument that HB 59 imposed an administrative burden upon it fails because Preterm failed to point to specific,

quantifiable costs associated with the new regulations being imposed.

{¶39} Preterm argues that the threat of criminal prosecution constituted a harm

sufficient to constitute a direct and concrete injury under HB 59. It does so by reference

to R.C. 2919.192(A), which defines the crime of performing or inducing an abortion

without informed consent when there is a detectable fetal heartbeat, and which applies to

any “person” who intends to perform or induce an abortion and fails to inform the

pregnant woman in writing that the fetus has a heartbeat. Preterm notes that the criminal

code includes a corporation within the definition of a “person,” see R.C. 2901.01, and that

because it is a nonprofit corporation, it is a “person” for purposes of R.C. 2919.192(A)

and potentially subject to criminal prosecution for a violation of that section.

{¶40} We discern the legislature’s intent “first of all in the language employed,

and if the words be free from ambiguity and doubt, and express plainly, clearly, and

distinctly the sense of the lawmaking body, there is no occasion to resort to other means

of interpretation.” Slingluff v. Weaver,

,

(1902), paragraph

two of the syllabus.

{¶41} Preterm’s reading of R.C. 2919.192(A) as applying the word “person” to a

corporation commits the error of failing to give all words in a statute meaning. Carter v.

Youngstown,

,

(1946). Both R.C. 2919.192(A)(1)

and (2) refer to “[t]he person intending to perform or induce the abortion[.]” The

corporate entity called “Preterm” cannot actually perform or induce an abortion, so it cannot violate R.C. 2919.192(A). Preterm simply has no exposure to criminal liability

under R.C. 2919.192(A) and thus cannot demonstrate a harm or injury sufficient to confer

standing.

{¶42} The majority concludes that physicians “do not work alone” and that it

would be disingenuous to argue that the heartbeat provisions “exclusively target just an

individual performing the actual abortion procedure and not also the clinic where the

abortion services are provided[.]” Ante at ¶ 25. By doing so, the majority simply imposes

its own interpretation of the statutes above the clear language of the heartbeat provision.

And it does so by resorting to the statement, “[e]very woman and man in Ohio

understands” the reality behind the heartbeat provision, to evade the issue raised under the

heartbeat provision. And even if Preterm’s interests are aligned with those of its medical

personnel who actually perform or induce abortions, that alignment of interests does not

mean that the legislature can hold Preterm criminally liable like those medical personnel

who actually perform or induce an abortion. If the majority’s reasoning is sound, it

would mean that R.C. 2919.192(E) would not only expose the corporate entity known as

Preterm to criminal punishment — a first violation of the heartbeat provisions a

first-degree misdemeanor and subsequent violations a fourth-degree felony — but

apparently its bookkeeper and janitorial staff, too, because they are “staff” without whose

services a physician could not render abortion services. We should not interpret statutes

to reach such a result. Mishr v. Poland Bd. of Zoning Appeals,

,

(1996). {¶43} Preterm next argues that it is injured by HB 59 because it faces substantial

administrative burdens in complying with the heartbeat provisions of R.C.

2919.192(A)(2). That section requires the person performing or inducing the abortion to

inform the pregnant woman, to the best of the person’s knowledge, of the statistical

probability of bringing the fetus to term based on the gestational age of the fetus. As

with R.C. 2919.192(A)(1), this section places the burden on the person intending to

perform or induce the abortion. Preterm cannot actually perform or induce an abortion,

so R.C. 2919.192(A)(2) imposes no burden upon it.

{¶44} Preterm also argues that it has suffered a concrete injury because it is being

forced to amend its policies and protocols in ways that burden its patients and physicians.

This argument is framed in terms of the burden placed on the physician and patient, not

on Preterm itself. Preterm not only filed its complaint for declaratory relief in its name

only, it specifically denied that it was relying on third-party standing. See Brief in

Opposition to Motion to Dismiss, fn. 5. It cannot now claim to have standing based on

an injury suffered by someone other than itself.

{¶45} Preterm next claims injury from the 24-hour waiting period required once

the person who intends to perform or induce the abortion detects a fetal heartbeat. It

maintains that the 24-hour waiting period burdens “those of Preterm’s patients who live

far from Preterm or would prefer to receive counseling from a non-Preterm physician,

such as a family physician.” Once again, this argument does not show an injury suffered by Preterm, but by its patients and/or physicians. It is not a basis for finding that Preterm

has standing to challenge HB 59.

{¶46} Preterm also claims that the 24-hour waiting period “creates logistical

problems for Preterm’s scheduling and administrative staff” because the waiting period

“results in unexpected scheduling changes for both the patient and Preterm staff.” These

assertions do not establish a “direct and concrete injury” of the kind required when a

private litigant who challenges the constitutionality of a statute seeks to show standing to

bring the action. Sheward,

,

.

{¶47} In Spokeo, Inc. v. Robins, 578 U.S.___,

,

(2016), the United States Supreme Court held that a “concrete” injury is one that “must

actually exist.”

, citing Black’s Law Dictionary 479 (9th Ed. 2009). Preterm

offered no evidence that any unexpected scheduling changes had occurred at the time it

filed its complaint, so it failed to plead that it suffered any injury at because standing is

determined “‘on the state of things at the time the action is brought.’” Fed. Home Loan

Mtge. Corp. v. Schwartzwald,

,

,

, ¶

25, quoting Mollan v. Torrance,

,

(1824). In addition,

Preterm could only argue that some scheduling changes might unexpectedly occur in the

future. Preterm’s allegation that it might suffer an injury in the future is too speculative

to be considered concrete enough to establish standing. See, e.g., In re Petition for

Incorp. of Holiday City,

,

(1994) (arguments concerning what injuries may occur in event of incorporation were “speculative at best

and fail to expose a present interest in the matters at issue”).

{¶48} Finally, Preterm maintains that the R.C. 2919.192(A)(2) requirement that the

person performing or inducing the abortion shall inform the pregnant woman, to the best

of the person’s knowledge, of the statistical probability of bringing the fetus to term based

on the gestational age of the fetus, has required it to “conduct extensive research in order

to determine what exactly the ‘statistical probability of bringing the fetus to term based on

the gestational age of the fetus’ is for every stage of a fetus’s development.”

{¶49} The duty to inform the pregnant woman of the statistical probability

information is a duty placed upon the “person intending to perform or induce the

abortion.” This duty does not fall on Preterm. Preterm’s decision to conduct research

on the issue of the probability of bringing the fetus to term based on the presence of a

fetal heartbeat was one it voluntarily undertook for the benefit of those persons who

would perform or induce an abortion. This was a self-inflicted injury because a party

“cannot manufacture standing merely by inflicting harm on themselves based on their

fears of hypothetical future harm that is not certainly impending.” Clapper,

,

.

{¶50} In addition, it appears that Preterm’s “extensive” research was gratuitous

given that the preamble to the Human Heartbeat Protection Act included the following

findings by the General Assembly:

The Ohio General Assembly finds that according to contemporary medical research: 1. As many as 30% of natural pregnancies end in spontaneous miscarriage; 2. Less than 5% of all natural pregnancies end in spontaneous miscarriage after detection of fetal cardiac activity; 3. Over 90% of in vitro pregnancies survive the first trimester if cardiac activity is detected in the gestational sac; 4. Nearly 90% of in vitro pregnancies do not survive the first trimester where cardiac activity is not detected in the gestational sac; 5. Fetal heartbeat, therefore, has become a key, medical predictor that an unborn human individual will reach viability and live birth; 6. Cardiac activity begins at a biologically identifiable moment in time,

normally when the fetal heart is formed in the gestational sac[.]

{¶51} It is true that R.C. 2919.192(C) states that “[t]he director of health may

adopt rules that specify information regarding the statistical probability of bringing an

unborn human individual possessing a detectable heartbeat to term based on the

gestational age of the unborn human individual.” (Emphasis added). Preterm claimed

that as of the date it filed its complaint, the director of health had not adopted any rules on

the statistical probability information. Nevertheless, R.C. 2919.192(A)(2) only requires a

person intending to perform or induce an abortion to inform the pregnant woman “to the

best of the person’s knowledge.” The General Assembly’s findings may be enough to

suffice in the absence of any rules adopted by the director of health, at least for purposes

of satisfying the “best of the person’s knowledge” requirement of the statute. Preterm’s

research was not required by the statute, so it could not be an injury for purposes of

establishing standing.

III. Written Transfer Agreement {¶52} Preterm argues that the court’s ruling on the written transfer agreement

provision ignored evidence that Preterm had been subjected to “onerous administrative

burdens by requiring Preterm to update and file its written transfer agreement every two

years.” Preterm Brief in Opposition to Motion for Summary Judgment at 15. It also

argued that R.C. 3727.60(B)(A) prohibits any “public hospital” from entering into a

written transfer agreement with any ambulatory surgical facility in which “nontherapeutic

abortions are performed or induced,” thus diminishing the pool of available hospitals with

which it could enter into a written transfer agreement.

{¶53} There was no evidence showing that Preterm had been subjected to

“onerous” administrative burdens stemming from the written transfer agreement.

Preterm conceded that at the time it filed its complaint (and since 2006), it has maintained

a written transfer agreement with the same private hospital. Nothing in the written

transfer agreements provision changed that fact. At the time it initiated this declaratory

judgment action, Preterm had no concrete injury resulting from the enactment of the

written transfer agreement provisions of HB 59.

{¶54} What Preterm really argues is that its future ability to obtain a written

transfer agreement may be diminished because public hospitals have been barred from

entering into written transfer agreements with nontherapeutic abortion clinics. With a

current transfer agreement in place with a private hospital, Preterm’s argument

necessarily relies on speculation that at some point in the future it might not be able to

obtain a transfer agreement with the same private hospital. Speculation does not constitute actual and concrete injury. See, e.g., State ex rel. Walgate v. Kasich,

,

(10th Dist.) (finding that plaintiff with gambling

addiction lacked private standing to contest legislation approving casino gambling

because plaintiff’s allegation that increased availability of gambling might cause him

injury was speculative and hypothetical).

{¶55} Preterm offered no evidence to support its assertion that it has been

administratively burdened by the written transfer agreement provision of R.C. 3702.303.

The only evidence offered by Preterm on this issue came from its director of clinic

operations, who claimed that HB 59 required Preterm to “update its written transfer

agreement every two years and to file a copy of the updated agreement with the Director

of Health.” Harrington aff. at ¶ 26. Yet Preterm acknowledged in an answer to an

interrogatory that it presently had a one-year, written transfer agreement with a private

hospital that automatically renewed. The R.C. 3702.303 requirement to update the

transfer agreement biennially could not have caused Preterm any injury when it has for

years been renewing its written transfer agreement on an annual basis. The statute may

actually require Preterm to do less, not more.

{¶56} What remains is the R.C. 3702.303(B) requirement that an ambulatory

surgical facility file a copy of an updated written transfer agreement with the director of

health. This requirement imposed no additional burden on Preterm. Preexisting

administrative regulations governed ambulatory surgical facilities and required them to

“have a written transfer agreement with a hospital for transfer of patients in the event of medical complications, emergency situations, and for other needs as they arise.” Ohio

Adm.Code 3701-83-19(E). In addition, ambulatory surgical facilities, which were

classified as “health care facilities” for purposes of Ohio Adm.Code 3701-83(I)(1), were

required to submit to the director of health a yearly application to renew the health care

facility’s license. See Ohio Adm.Code 3701-83-04(B). Preterm offered no evidence to

show that R.C. 3702.303(B) imposed any burden in addition to what had previously been

required of it by administrative regulation.

{¶57} The majority chooses not to address the actual nature of Preterm’s injury

and focuses on its conclusion that Preterm sufficiently alleged a “seemingly minimal

injury.” While even a minimal injury can support standing, Preterm’s alleged injury

comes without any quantification of what costs have been imposed upon Preterm. In

fact, at no point has Preterm actually put a monetary cost on its so-called administrative

burdens. This means that the “minimal” nature of Preterm’s injury is arrived at through

speculation or conjecture. The use of speculation means that Preterm’s injury cannot be

the kind of direct and concrete injury necessary to establish standing to challenge the

constitutionality of a statute.

{¶58} I respectfully dissent.