In the

Supreme Court of Ohio

PRETERM-CLEVELAND, INC., Plaintiff-Appellee, v. GOVERNOR JOHN R. KASICH, et al.,

Defendants-Appellants

: : : : : : : : :

Case No. 2016-1252 On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No. CA-15-103103

MERIT BRIEF OF STATE APPELLANTS

B. JESSIE HILL* (0074770) *Counsel of Record Case Western Reserve University School of Law 11075 East Blvd. Cleveland, Ohio 44106 216-368-0553; 216-368-2086 fax jessie.hill@case.edu

SUSAN O. SCHEUTZOW (0010950) JUSTINE LARA KONICKI (0086277) Kohrman Jackson & Krantz LLP One Cleveland Center, 29th Floor 1375 East Ninth Street Cleveland, Ohio 44114-1793 216-696-8700; 216-621-6536 fax sos@kjk.com

ELIZABETH BONHAM (0093733) FREDA J. LEVENSON (0045916) American Civil Liberties Union of Ohio Foundation 4506 Chester Avenue Cleveland, Ohio 44103 216-472-2220; 216-472-2210 fax flevenson@acluohio.org

Counsel for Plaintiff-Appellee Preterm-Cleveland, Inc. LORIE A. CHAITEN

MICHAEL DEWINE (0009181) Attorney General of Ohio

ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record STEPHEN P. CARNEY (0063460) Deputy Solicitor RYAN L. RICHARDSON (0090382) TIFFANY L. CARWILE (0082522) Assistant Attorneys General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980; 614-466-5087 fax eric.murphy@ohioattorneygeneral.gov

Counsel for State Defendants-Appellants Governor John R. Kasich State of Ohio Ohio Department of Health and Interim Director Lance Himes Ohio Department of Job and Family Services and Director Cynthia C. Dungey State Medical Board and its members (Dr. Amol Soin, Robert Giacalone, Dr. Kim Rothermel, Dr. Bruce Saferin, Dr. Mark Bechtel, Dr. Richard Edgin, Dr. Ronan Factora, Michael Gonidakis, Donald Kenney, Sr., Dr. Andrew Schachat, Dr. Michael Schottenstein, and Dr. Anita M. Steinbergh)

Supreme Court of Ohio Clerk of Court - Filed April 24, 2017 - Case No. 2016-1252

(pro hac vice 5548-2015) Roger Baldwin Foundation of ACLU, Inc. 180 North Michigan Ave., Suite 2300 Chicago, Illinois 60601 312-201-9740; 312-288-5225 fax lchaiten@aclu-il.org

Co-Counsel for Plaintiff-Appellee Preterm-Cleveland, Inc. CHARLES E. HANNAN (0037153) Assistant Prosecuting Attorney Cuyahoga County Prosecutor’s Office Justice Center Bld., 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 216-443-7758

Counsel for Defendant-Appellee Prosecutor McGinty

i

TABLE OF CONTENTS

Page TABLE OF CONTENTS ................................................................................................................. i 

TABLE OF AUTHORITIES ......................................................................................................... iii 

INTRODUCTION ...........................................................................................................................1 

STATEMENT OF THE CASE AND FACTS.................................................................................4 

A.  Preterm challenged several provisions enacted in the 2013-2014 biennial budget bill, alleging that they violate the Ohio Constitution’s one-subject rule. ....................................4 

B.  After the trial court denied the State’s motion to dismiss for lack of standing, Preterm offered evidence to support standing claims as to some provisions and conceded that it was not affected by the Parenting and Pregnancy Provisions. .........................................6 

C.  Based on the record at summary judgment, the trial court concluded that Preterm lacked standing as to all its challenges and granted summary judgment to the State. .........8 

D.  The Eighth District Court of Appeals reversed. ...................................................................9 

ARGUMENT .................................................................................................................................10 

Appellant States’ Proposition of Law:  

The Ohio Constitution requires plaintiffs to establish standing for each claim, so a plaintiff challenging several provisions in a bill on one-subject grounds must prove standing for each provision. To do so, a plaintiff must identify an injury that is both concrete and particularized and actual and imminent. A plaintiff therefore lacks standing to challenge laws that may never harm it, that it may satisfy merely by sending a document, or that apply only to different persons. ............................................10 

A.  Standing’s well-established elements are constitutional limits that must be enforced. .....11 

1.  A plaintiff must show an actual injury, caused by defendants and redressable by court-ordered relief. ..........................................................................................11 

2.  Standing is a critical constitutional limit and protects the separation of powers. ...................................................................................................................12 

3.  The Eighth District’s dismissive approach to standing was mistaken, and that approach was the foundation for its mistakes in applying the law. .......................15 

ii

B.  A plaintiff challenging a statutory provision must show harm from that provision, and no exception allows a plaintiff challenging one provision of a budget bill on one-subject grounds to challenge other provisions that do not affect the plaintiff. ...........17 

1.  Standing is claim-specific, as it must be to maintain constitutional limits. ...........17 

2.  No exception exists for one-subject challenges generally or challenges to budget bills in particular. .......................................................................................18 

3.  Preterm admits that it is not harmed by the Parenting and Pregnancy Provisions, so that dooms its claim to standing to challenge them. .......................21 

4.  The Eighth District’s contrary view, creating an exception to standing rules, was mistaken. .........................................................................................................22 

C.  To show standing, an injury must be impending and not speculative, must be concrete and not de minimis, and must affect the plaintiff and not others; and therefore, Preterm fails to show standing on the remaining claims. ..................................24 

1.  An injury may not be speculative, so Preterm has no standing to challenge the Public Hospital Provision, as it has an agreement with a private hospital. ...........25 

2.  An injury must be concrete and palpable, so Preterm has no standing to challenge the Written Transfer Agreement Provisions requiring it to renew its agreement biennially and send it to the Department. .............................................27 

3.  An injury must affect the plaintiff and not others, so Preterm has no standing to challenge the Informed Consent Provisions that govern doctors. .....................29 

4.  The Eighth District’s contrary views on each point were mistaken. .....................34 

CONCLUSION ..............................................................................................................................38 

CERTIFICATE OF SERVICE 

APPENDIX:

Notice of Appeal, August 22, 2016 .................................................................... Appendix 1

Journal Entry and Opinion, Eighth Appellate District, July 7, 2016 .................. Appendix 2

Opinion and Order, Court of Common Pleas, May 18, 2015 ............................. Appendix 3

iii

TABLE OF AUTHORITIES

Cases Page(s)

Akron Metro. Hous. Auth. Bd. of Trustees v. State, 2008-Ohio-2836 (10th Dist.) .................................................................................15, 19, 20, 22

Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948.....................................................................................18

Atl. Urological Assocs., P.A. v. Leavitt, 549 F. Supp. 2d 20 (D.D.C. 2008) ...............................................................................25, 28, 30

Capital Care Network of Toledo v. State of Ohio Dept. of Health, Case No. 2016-1348.............................................................................................................5, 16

City of S. Euclid v. Jemison, 28 Ohio St. 3d 157 (1986) .......................................................................................................13

Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138 (2013) ..................................................................................................... passim

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .................................................................................................................17

Fair Elections Ohio v. Husted, 770 F.3d 456 (6th Cir. 2014) ...................................................................................................34

Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St. 3d 13, 2012-Ohio-5017.......................................................................................12

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .............................................................................................................14

Lewis v. Casey, 518 U.S. 343 (1996) .................................................................................................................17

Los Angeles v. Lyons, 461 U.S. 95 (1983) ...................................................................................................................25

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .....................................................................................................14, 24, 36

Moore v. Middletown, 133 Ohio St. 3d 55, 2012-Ohio-3987.......................................................................................18

N. Canton v. Canton, 114 Ohio St. 3d 253, 2007-Ohio-4005...............................................................................30, 31

iv

Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272 (6th Cir. 1997) ...................................................................................................32

Peltz v. S. Euclid, 11 Ohio St. 2d 128 (1967) .......................................................................................................13

ProgressOhio.org., Inc. v. JobsOhio, 139 Ohio St. 3d 520, 2014-Ohio-2382............................................................................. passim

ProgressOhio.org, Inc. v. JobsOhio, 2012-Ohio-2655 (10th Dist.) .............................................................................................25, 28

Putnam v. Valentine, 5 Ohio 187 (1831) ....................................................................................................................13

Singleton v. Wulff, 428 U.S. 106 (1976) .................................................................................................................32

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .......................................................................................................12, 28

State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St. 2d 176 (1973) .......................................................................................................13

State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451 (1999) .............................................................................................2, 12, 15

State ex rel. Ohio Civ. Serv. Emps. Ass’n v. State, 146 Ohio St. 3d 315, 2016-Ohio-478.................................................................................19, 23

State ex rel. Ohio Civ. Serv. Emps. Ass’n v. State, 2013-Ohio-4505 (10th Dist.) ...................................................................................................20

State ex rel. Walgate v. Kasich, 147 Ohio St. 3d 1, 2016-Ohio-1176 ................................................................................ passim

State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424.....................................................................................14

Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334 (2014) ........................................................................................................32, 33

Tate v. Garfield Heights, 8th Dist. Cuyahoga No. 99099, 2013-Ohio-2204 ....................................................................20

United States v. Richardson, 418 U.S. 166 (1974) .................................................................................................................14

v

Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio St. 3d 284, 2009-Ohio-6764.....................................................................................31

Village of Linndale v. State, 2014-Ohio-4024 (10th Dist.) ...................................................................................................21

Wilson v. Cincinnati, 171 Ohio St. 104 (1960)...........................................................................................................13

Wurdlow v. Turvy, 2012-Ohio-4378 (10th Dist.) ...................................................................................................25

Statutes, Rules, and Constitutional Provisions

Civ.R. 12(B)(6) ..............................................................................................................................24

Foreign Intelligence Surveillance Act of 1978 ..............................................................................26

Ohio Adm. Code 3701-83 ..............................................................................................................28

Ohio Adm. Code 3701-83-04(B) ...................................................................................................29

Ohio Adm. Code 3701-83-04(D) ...................................................................................................29

Ohio Adm. Code 3701-83-19(E) ...............................................................................................5, 29

Ohio Const. art. II, § 1 ...................................................................................................................14

Ohio Const. art. II, § 15(D) ..............................................................................................................4

Ohio Const. art. III, § 1 ..................................................................................................................14

Ohio Const. art. IV, § 1 ............................................................................................................12, 13

Ohio Const. art. IV, § 4(B) ............................................................................................1, 12, 13, 15

R.C. 2317.56 ....................................................................................................................................5

R.C. 2919.191 ................................................................................................................................35

R.C. 2919.192 ..........................................................................................................................35, 36

R.C. 3702.30 ....................................................................................................................................4

R.C. 3702.302 ..................................................................................................................................4

R.C. 3702.303 ..................................................................................................................................4

R.C. 3702.304 ..................................................................................................................................4

vi

R.C. 3702.305 ..................................................................................................................................4

R.C. 3702.306 ..................................................................................................................................4

R.C. 3702.307 ..................................................................................................................................4

R.C. 3702.308 ..................................................................................................................................4

R.C. 3727.60(B) ...............................................................................................................................5

R.C. 4731.22 ....................................................................................................................................5

R.C. 5101.80 ....................................................................................................................................4

R.C. 5101.801 ..................................................................................................................................4

R.C. 5101.804 ..................................................................................................................................4

R.C. 5101.804(B)(5) ........................................................................................................................4

R.C. 5101.804(C)(5) ........................................................................................................................4

Other Authorities

1968 SJR 30 ...................................................................................................................................13

3 Correspondence and Public Papers of John Jay 486 (H. Johnston ed. 1890-1893) ....................14

INTRODUCTION

Ohio’s courts of common pleas exist to settle concrete legal disputes between parties, not

to offer a platform for hypothetical debates started by those without a personal stake in a matter.

Those without a personal stake, but with strong policy views, may promote their views in public

debate, may seek to persuade their fellow citizens, and may lobby their elected representatives.

But if they seek to have a court address a dispute, they must have a concrete dispute involving

recognized legal interests. Thus, a plaintiff must have “standing” to sue, and when it does not, a

court has no power to hear the plaintiff’s claim. As this Court has explained, this is a bedrock

constitutional requirement: Article IV, Section 4(B) of the “Ohio Constitution expressly requires

standing for cases filed in common pleas courts.” ProgressOhio.org., Inc. v. JobsOhio, 139

Ohio St. 3d 520, 2014-Ohio-2382 (“JobsOhio”) ¶ 11.

The appeals court here decided to set aside Ohio’s Constitution, saying instead that

standing was not required, but was merely “a self-imposed judicial rule of restraint” that could be

“dispense[d] with” if “the public interest so demands.” Preterm-Cleveland, Inc. v. Kasich, 2016-

Ohio-4859 (8th Dist.) (“App. Op.”), App’x 2, ¶ 11. That fundamentally mistaken approach

spawned several errors in applying routine standing requirements, and it led the court to find

standing where none exists. This Court should reverse.

This case arose when Preterm-Cleveland Inc. (“Preterm”), an abortion clinic, challenged

provisions in Ohio’s 2013-2014 budget bill under the Ohio Constitution’s one-subject clause.

Preterm challenged four provisions: (1) those providing funding to assist pregnant women and

new parents—even though Preterm does not seek, and has never sought, to participate in that

program; (2) those requiring all “ambulatory surgical facilities” (clinics that do outpatient

surgeries) to have written transfer agreements with local hospitals—even though Preterm has

long had such an agreement; (3) those barring public hospitals from entering into written transfer

2

agreements with abortion clinics—even though Preterm’s agreement is with a private hospital;

and (4) those amending Ohio’s informed-consent laws to require abortion doctors to inform a

woman about a detectable heartbeat—even though this provision regulates doctors, not clinics.

Because none of these provisions has injured Preterm, the trial court granted summary judgment

to the State based on Preterm’s lack of standing. But the appellate court reversed, in a fractured

2-1 decision, finding standing as to all provisions and making several mistakes on the way. App.

Op. ¶¶ 21-28.

First, as noted above, the Eighth District ignored this Court’s reminder that standing is an

absolute constitutional requirement, calling it instead a judge-made rule to be “dispensed with”

when a court says the “public interest” requires it. Id. ¶ 11. In doing so, the court relied on a

theory that this Court expressly rejected. Indeed, for this point, the appeals court relied on State

ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451 (1999), the original-

action case in this Court that the Court has held cannot be used to support standing in common

pleas courts. JobsOhio, 2014-Ohio-2382 ¶ 11. The appeals court compounded this error by

dismissively referring to standing as a “technique” that “blocks” review of important issues that

“need[] space for resolution.” See App. Op. ¶¶ 29-33. The court suggested improperly that the

State sought to use standing merely to block consideration of the claims here, despite the fact

that the State has litigated some of the identical issues in other cases, without challenging

standing, when raised by a party actually affected. Indeed, one such case is pending in this

Court. All this shows that the appeals court’s entire approach was wrong, and so it is not

surprising that it reached the wrong results on the particulars.

Second, the Eighth District adopted a novel, mistaken rule when it held that Preterm had

standing to challenge the parenting and pregnancy finding provisions, even though Preterm

3

admits that those funding provisions do not affect it. The court held that Preterm could challenge

those provisions because it challenged other provisions in the same budget bill, also on

one-subject grounds. The court cited a case allowing such bill-wide standing in the rare situation

in which a plaintiff sought to invalidate the entire bill. Id. ¶ 11. But the court here expanded that

view to allow Preterm to cherry-pick the select provisions that it wished to attack without

challenging the entire bill. That violates the rule that standing is claim-specific. And it would

allow any plaintiff wishing to challenge several provisions in a bill to find just one provision that

affects it and use that as a hook for multiple distinct claims.

Third, each of the other separate standing holdings here is wrong, as each represents an

unwarranted relaxation of standing rules. Preterm has no standing to attack the limit on public

hospitals signing transfer agreements because it has had an agreement with a private hospital for

over a decade, and the possibility that it will ever ask a public hospital for a transfer agreement is

pure speculation. Preterm has no standing to challenge the other transfer-agreement rules

because it has met them for decades under the previous requirements, and the minor changes,

such as having to renew the agreement biennially and send a copy of a document to the State, do

not amount to an “injury.” Preterm likewise has no standing to challenge provisions governing

informed consent because those laws regulate doctors (who can sue in their own right). Clinics

cannot raise third-party standing for doctors in the same way that doctors can sometimes raise

patients’ rights.

In sum, the Court should apply settled standing law, as mandated by the Ohio

Constitution, and affirm the routine dismissal of this case.

4

STATEMENT OF THE CASE AND FACTS

A. Preterm challenged several provisions enacted in the 2013-2014 biennial budget bill, alleging that they violate the Ohio Constitution’s one-subject rule.

Ohio passed its 2013-2014 biennial budget bill, H.B. 59, on June 30, 2013 (“2013 budget

bill”). Plaintiff Preterm, an abortion clinic, sued several state entities and officials in the

Cuyahoga County Common Pleas Court, seeking to invalidate provisions in that bill. Preterm

named as Defendants Governor John Kasich, the State of Ohio, the Ohio Department of Health

and its director, the Ohio Department of Job and Family Services and its director, and the Ohio

Medical Board and its members (together, “the State”), along with the Cuyahoga County

Prosecutor. Preterm alleged that four sets of provisions violate Ohio’s one-subject rule, Article

II, Section 15(D) of the Ohio Constitution: (1) the Parenting and Pregnancy Provisions; (2) the

Written Transfer Agreement Provisions; (3) the Public Hospital Provision; and (4) the Informed

Consent Provisions.

Parenting and Pregnancy Provisions. The budget bill amended R.C. 5101.80 and

5101.801 and enacted R.C. 5101.804. Those provisions authorized the Ohio Department of Job

and Family Services to spend federal funds (from “Temporary Assistance for Needy Families”)

on services to pregnant women, parents, or other relatives caring for children up to 12 months of

age. Compl. ¶¶ 40-47; see App. Op. ¶ 21. The program, called the “Ohio Parenting and

Pregnancy Program,” provides the services only through non-profit entities that do not perform

abortions. R.C. 5101.804(B)(5), (C)(5).

Written Transfer Agreement Provisions. The budget bill amended R.C. 3702.30 and

enacted R.C. 3702.302, 3702.303, 3702.304, 3702.305, 3702.306, 3702.307, and 3702.308.

These provisions update Ohio laws governing “ambulatory surgical facilities,” which are entities

performing outpatient surgeries. For the most part, these provisions codified into statutes the

5

requirements that Ohio has long imposed by administrative regulation: All ambulatory surgical

facilities (not just abortion clinics) must have written transfer agreements with local hospitals to

provide for the smooth transfer of patients to a hospital for a medical emergency or other need.

See Ohio Adm. Code 3701-83-19(E). The provisions also authorize the Director of the

Department of Health to grant and rescind variances from these requirements. And they clarify

and update the administrative filing requirements for submitting written transfer agreements to

the Department. Under the previous regulations, a facility was required to maintain a current

agreement with a hospital, and the facility was required to certify to the Department that it had

one and show it upon inspection. Under the new statutes, the facility must renew any agreement

with a hospital every two years and must include a copy with its annual application to renew its

license. Compl. ¶¶ 35-39; see App. Op. ¶ 19. (This Court has granted review in another case

raising a one-subject challenge to the Written Transfer Agreement Provisions, Capital Care

Network of Toledo v. State of Ohio Dept. of Health, Case No. 2016-1348.)

Public Hospital Provision. Another provision of the budget bill prohibits the State’s

public hospitals from entering into written transfer agreements with ambulatory surgical centers

that provide abortion services. R.C. 3727.60(B). This provision, which Preterm included in its

challenge to the Written Transfer Agreement provisions, is the only challenged transfer-

agreement provision that is abortion-specific. Compl. ¶ 38; see App. Op. ¶ 19.

Informed Consent Provisions. The budget bill amended R.C. 2317.56 and 4731.22 and

enacted 2919.19, 2919.191, 2919.192, 2919.193. These amendments changed the informed-

consent laws that apply to abortion. They require doctors who perform abortions to try to detect

a fetal heartbeat at least 24 hours before performing an abortion, and, if a heartbeat is detected, to

6

inform the woman of that fact, offer the option of listening to the heartbeat, and advise her of the

statistical probability of carrying her pregnancy to term. Compl. ¶¶ 29-34; see App. Op. ¶ 17.

Preterm sought a declaratory judgment that these provisions violate the one-subject rule

and sought to enjoin those provisions. Compl. ¶ 58 and Prayer for Relief.

B. After the trial court denied the State’s motion to dismiss for lack of standing, Preterm offered evidence to support standing claims as to some provisions and conceded that it was not affected by the Parenting and Pregnancy Provisions.

The State initially moved to dismiss the complaint for lack of standing, arguing that

Preterm failed to allege sufficient injury from any of the challenged provisions. The court denied

the State’s motion. According to the court, the allegations in the complaint sufficiently alleged

injury to overcome a motion to dismiss at the pleading stage. The court, however, permitted the

parties to conduct discovery on the issue of standing.

At the close of discovery, the parties cross-moved for summary judgment. Both sides

argued that they should win on the merits under the one-subject rule. In addition, the State

renewed its standing challenge, emphasizing that a plaintiff faces a higher burden to prove

standing at the summary-judgment phase and arguing that the record confirmed that Preterm

could not satisfy that burden.

In response, Preterm admitted that it was not “personally injured” by “all of the

provisions of the Act it challenges in this case.” Preterm Response Brief at 16. In particular, it

did not allege injury as a result of the Pregnancy and Parenting Provisions, as it had never

applied for any of the funding at issue. See App. Op. ¶ 21. But it insisted it had suffered injury

as a result of the other provisions. It offered the following argument and evidence in support.

Public Hospital Provision. With respect to the Public Hospital Provision, Preterm

admitted that it has had a written transfer agreement with a private hospital for more than a

decade. See Plaintiff’s Response to State Defendants’ First Set of Requests for Admission,

7

Response # 2. It contended, however, that the public hospital provision could harm it in the

future. Preterm submitted the affidavit of Heather Harrington, Preterm’s Director of Clinic

Operations. Harrington asserted that as a result of the Public Hospital Provision, Preterm “may

only seek a written transfer agreement with a more limited number of hospitals than in the past.”

Harrington Aff. ¶ 27, Supp. S-4. She speculated that Preterm therefore faces a “greater risk of

loss or revocation than before HB 59 was passed.” Id. ¶ 28.

Written Transfer Agreement Provisions. Preterm similarly relied on the Harrington

affidavit to support its claimed injuries from the other Written Transfer Agreement Provisions.

Specifically, the affidavit stated: “Pursuant to the Written Transfer Agreement Provisions,

Preterm is also required to update its written transfer agreement every two years and to file a

copy of the updated agreement with the Director of Health.” Id. ¶ 26. Harrington averred that

“[t]hese are new and burdensome requirements, which were not contained in the pre-existing

regulations.” Id.

Informed Consent Provisions. Preterm devoted the bulk of its argument and statements

in the Harrington affidavit to the informed consent provisions. On this point, the affidavit

claimed that “Preterm has been forced to amend its policies, procedures, and protocols

concerning informed consent,” which it claimed required it to “conduct[] extensive research,”

and “modify its consent and certification process” Id. ¶¶ 5-23. In addition to the claims asserted

in the affidavit, Preterm argued for the first time in its summary-judgment briefs that abortion

clinics themselves could be criminally prosecuted under the Informed Consent Provisions.

Preterm argued its fear that such a prosecution would occur provided a basis for standing.

8

* * *

Preterm argued that these proffered injuries not only conferred standing to challenge the

Public Hospital Provision, the Written Transfer Agreement Provisions, and the Informed

Consent Provisions, but also provisions like the Pregnancy and Parenting Funding Provisions (or

other provisions within the bill) that did not injure Preterm. “If it is injured by one provision,”

Preterm argued, “it has standing to challenge the entire enactment and need not show that it is

injured by every provision.” Preterm Response Brief at 11.

C. Based on the record at summary judgment, the trial court concluded that Preterm lacked standing as to all its challenges and granted summary judgment to the State.

After oral argument and post-argument briefing, the trial court agreed with the State that

Preterm had not established standing with respect to any of the challenged provisions. Opinion

and Order (May 18, 2015) (“Com. Pl. Op.”), App’x. 3, ¶ 7. The court acknowledged that it had

previously denied the State’s motion to dismiss, and it explained that, “[a]t that stage of the

proceedings, the court’s review was limited to the four corners of the complaint” and “[a]ll

material allegations were accepted as true.” Id. at 3. Preterm’s burden at the summary-judgment

stage, by contrast, was to “set forth admissible evidence which demonstrates that it has suffered a

direct and concrete injury.” Id. at 4. In the court’s view, based on the evidence and argument

presented, Preterm failed to satisfy this burden.

With respect to the Public Hospital Provision and Written Transfer Agreement

Provisions, the court stressed that “the evidence before the court is that Preterm has had a written

transfer agreement with a private hospital, University Hospital, since 2005.” Id. at 5. Based on

Preterm’s responses to requests for admission and concessions during oral argument, the court

found that “Preterm was able to secure a new written transfer agreement with University

Hospital in 2013, and there is no evidence before the Court that this agreement will not be

9

renewed in the future.” Id. at 5. The court found “no evidence that Preterm has suffered an

injury as it relates to the ‘written transfer agreement provisions,’ nor any evidence that Preterm is

threatened with an injury in the future.” Id.

Finally, the court held that Preterm faced no injury from the Informed Consent

Provisions. Id. at 5-6. The court found that the Harrington affidavit was “generally conclusory

and fail[ed] to demonstrate an injury suffered by Preterm that [was] monetarily quantifiable or

concrete and particularized.” Id. at 6. The court further found that the Informed Consent

Provisions were directed toward doctors and that Preterm had not sued on behalf of any doctor.

Id. The court determined that Preterm was “not currently subject to criminal prosecution . . . and

there [was] nothing before the court indicating that Preterm [would] be subject to any future

prosecution, or even that prosecution [was] likely to happen at any indeterminate point in the

future.” Id. at 7.

Based on these findings, the court concluded that Preterm lacked standing and granted

summary judgment in favor of the State.

D. The Eighth District Court of Appeals reversed.

Preterm appealed, and the Eighth District Court of Appeals reversed the trial court’s

standing decision in a fractured opinion. App. Op. ¶ 1. The majority acknowledged that

“Preterm apparently concedes that it has not been injured by the [Pregnancy and Parenting]

provisions.” Id. ¶ 21. But, in its view, Preterm had suffered injury from “at least one of the

provisions of HB 59.” Id. ¶ 28. That authorized Preterm to challenge any provision: “[B]ecause

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.” Id. The Court found that Preterm was injured

by each of the remaining provisions it challenged. Id. ¶¶ 23-27. The majority also criticized the

10

State for even asserting the standing challenge, suggesting that the laws’ controversial “subject

matter” made it wrong to “block[]” Preterm from its “day in court.” Id. ¶ 29.

Judge Stewart dissented. Like the trial court, the dissent concluded that Preterm lacked

standing “because it has not shown that it suffered any concrete or direct injury from the

legislation.” Id. ¶ 35. The dissent reasoned that “[m]ost 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.” Id. Further, “[t]o 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.” Id.

ARGUMENT

Appellant States’ Proposition of Law:

The Ohio Constitution requires plaintiffs to establish standing for each claim, so a plaintiff challenging several provisions in a bill on one-subject grounds must prove standing for each provision. To do so, a plaintiff must identify an injury that is both concrete and particularized and actual and imminent. A plaintiff therefore lacks standing to challenge laws that may never harm it, that it may satisfy merely by sending a document, or that apply only to different persons.

On one hand, this case involves the weightiest of principles, as it involves constitutional

limits upon the judiciary and its very power to hear cases. On the other hand, this case asks the

Court only to apply settled law to Preterm’s facts, as the trial court rightly did in rejecting

Preterm’s standing on each claim. This Court’s course-correction is needed only because the

appeals court departed from settled law, and applying the right rules is straightforward.

First, the Ohio Constitution requires plaintiffs to establish their “standing”—that is, that

they have suffered an injury that would be redressed by court-ordered relief—to invoke the

jurisdiction of Ohio’s common pleas courts. The appeals court was wrong to dismiss standing as

merely “a self-imposed judicial rule of restraint” that could be “dispense[d] with” if “the public

11

interest so demands.” App. Op. ¶ 11. Second, the appeals court was wrong to say Preterm has

standing to challenge the Pregnancy and Parenting Funding Provision, as Preterm admits that

such funding does not affect it at all. A plaintiff must show standing independently for each

claim raised, and it may not piggyback standing to attack one law on its attacks against other

laws, even if they are in the same bill. Third, the court was wrong to grant standing on each of

the other provisions. Preterm’s “injury” from the Public Hospital Provision is speculative, as it

already has a transfer agreement with a private hospital. Preterm’s “injury” from the Written

Transfer Agreement Provisions is de minimis and not concrete, as it was already required to

maintain such an agreement, and the new law merely requires Preterm to renew it biennially and

send a copy to the Department. Finally, Preterm has no standing to challenge the Informed

Consent Provisions, as those laws govern doctors, not clinics.

In sum, Preterm has no standing to sue over any of the provisions that it challenges, and

the trial court was right to grant summary judgment to the State on that basis.

A. Standing’s well-established elements are constitutional limits that must be enforced.

Standing has well-settled elements that must be met. Equally important, standing is a

constitutional requirement, not a policy choice. The appeals court was wrong to say otherwise.

1. A plaintiff must show an actual injury, caused by defendants and redressable by court-ordered relief.

The elements of standing are well-settled. “Under traditional standing principles,”

plaintiffs must prove that they have “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.”

State ex rel. Walgate v. Kasich, 147 Ohio St. 3d 1, 2016-Ohio-1176 ¶ 18 (quotation omitted). To

meet the actual-injury requirement, plaintiffs must show that they have “suffered an invasion of a

legally protected interest that is concrete and particularized and actual or imminent, not

12

conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quotation

omitted). To qualify as particularized, the alleged injury must be “different in character from

that sustained by the public generally.” Walgate, 2016-Ohio-1176 ¶ 19 (quotation omitted). To

qualify as “concrete,” the injury must be “real, and not abstract.” Spokeo, 136 S. Ct. at 1548

(quotation omitted). And to qualify as “imminent,” the injury must be “‘certainly impending.’”

Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138, 1147 (2013) (quotation omitted) (emphasis

omitted).

2. Standing is a critical constitutional limit and protects the separation of powers.

As this Court explained in JobsOhio, Article IV, Section 4(B) of the “Ohio Constitution

expressly requires standing for cases filed in common pleas courts.” 2014-Ohio-2382 ¶ 11; see

also Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St. 3d 13, 2012-Ohio-5017 ¶ 20,

24 (holding that “standing to sue is required to invoke the jurisdiction of the common pleas

court,” and citing Article IV, Section 4(B)). That constitutional provision says that common

pleas courts “‘shall have . . . original jurisdiction over all justiciable matters.’” JobsOhio, 2014-

Ohio-2382 ¶ 11 (quoting provision) (emphasis added by Court). The Court further explained

that a “matter is justiciable only if the complaining party has standing to sue.” Id.

Leaving no doubt, the Court stated the corollary: Because the Constitution requires

standing, any attempt to overlook the requirement is unconstitutional. “Thus, if a common pleas

court proceeds in an action in which the plaintiff lacks standing, the court violates Article IV of

the Ohio Constitution.” Id. The Court restated that “Article IV requires justiciability, and

justiciability requires standing.” Id. It explained that “[t]hese constitutional requirements cannot

be bent to accommodate Sheward,” referring to the case that allowed “public-right standing” in

the different context of original actions. Id.; see Sheward, 86 Ohio St. 3d 451 (1999).

13

The Court was right, of course, both about the Constitution’s plain text and in saying that

“justiciability requires standing.” JobsOhio, 2014-Ohio-2392 ¶ 11. When Ohio’s voters limited

common pleas courts to hearing “justiciable” matters, they adopted a well-established legal term

that incorporated the requirement of standing as well as the broader principles regarding the

existence of a controversy. Ohioans added Article IV, Section 4(B) to the Constitution as part of

the Modern Courts Amendment in 1968. See 1968 SJR 30; City of S. Euclid v. Jemison, 28 Ohio

St. 3d 157, 163 n.2 (1986) (noting that the provision was part of Modern Courts Amendment).

By that time, the Court had repeatedly used the term “justiciability” to refer to standing, as for

example, when addressing standing under the declaratory judgment statute. See, e.g., Wilson v.

Cincinnati, 171 Ohio St. 104, 107-08 (1960) (holding that “plaintiffs have established that they

possess a legal interest in an actual controversy, which controversy is justiciable in nature” as to

one claim, while “plaintiffs are without standing” on another claim); Peltz v. S. Euclid, 11 Ohio

St. 2d 128, 131 (1967) (holding that plaintiff had “standing for declaratory relief,” and counter-

argument “did not eliminate the justiciability” of his claims (emphasis added)).

The constitutional requirement of standing is not only expressly required by Article IV,

Section 4(B), but also rooted in Article IV, Section 1, which vests the “judicial power”—and

only the judicial power—in this Court and in the lower courts. Ohio Const. art. IV, § 1. This

“judicial power” has always included the “jurisdictional requirement” that a “party must have

standing to raise an issue,” a requirement that flows out of the “historical connotations of the

adversary process.” State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio

St. 2d 176, 179 (1973); cf. Putnam v. Valentine, 5 Ohio 187, 189-90 (1831) (“The individual

complainant has no such interest in or connection with the subject of this bill as to entitle him, as

such, to the relief prayed for.”). The judicial power does “not include every sort of dispute, but

14

only those historically viewed as capable of resolution through the judicial process.”

Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013) (quotation omitted).

Moreover, by limiting judicial power in this way, the doctrine of standing serves

important separation-of-powers purposes designed to protect the liberty of all. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). It ensures “that the Judicial Branch neither

be assigned nor allowed tasks that are more properly accomplished by [other] branches.” State v.

Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424 ¶ 53 (quotation omitted) (alteration in original).

As Chief Justice Jay long ago explained to President Washington when declining the President’s

request for an advisory opinion, “the lines of separation drawn by the Constitution between the

three departments of the government” prohibit the federal courts from issuing such advisory

opinions outside of a real dispute. 3 Correspondence and Public Papers of John Jay 486-89 (H.

Johnston ed. 1890-1893). The same lines exist under the Ohio Constitution: It gives the courts

“the judicial power,” gives the General Assembly the “legislative power,” art. II, § 1, and vests

divided executive powers among the governor and other elected officials in the “executive

department,” art. III, § 1. No branch may exercise powers outside of those limits. In sum,

“[r]elaxation of standing requirements is directly related to the expansion of judicial power”—an

expansion that would go well beyond the ordinary meaning of the phrase “judicial power” when

it was placed into the Ohio Constitution in 1851. United States v. Richardson, 418 U.S. 166, 188

(1974) (Powell, J., concurring).

Consequently, this case, like every standing case, involves not a mere procedural

technicality or policy choice, but a bedrock constitutional limit that Ohio’s citizens have placed

on our judicial system.

15

3. The Eighth District’s dismissive approach to standing was mistaken, and that approach was the foundation for its mistakes in applying the law.

Although this Court has re-affirmed that standing is a constitutional requirement, the

appeals court said otherwise, dismissing standing requirements as optional. That fundamental

mistake led to its many other errors.

The appeals court stated its dismissive approach openly, relying on Sheward for a theory

that this Court disavowed in JobsOhio. The appeals court said that standing was optional:

“[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.’” App. Op. ¶ 11 (quoting Akron Metro. Hous. Auth. Bd. of Trustees v. State, 2008-

Ohio-2836 (10th Dist.) ¶ 11 (quoting Sheward, 86 Ohio St. 3d at 470)). That last quoted part—

that courts “are free to dispense with” the injury requirement based on “public interest”—is from

Sheward and is precisely what this Court rejected in JobsOhio. This Court explained that

Sheward’s “public interest” standing exists, at most, in original action cases, and it “does not

apply to declaratory-judgment actions filed in common pleas courts.” JobsOhio, 2014-Ohio-

2382 ¶ 10. It explained that it could not extend Sheward to cases in common pleas courts if it

wished to, as Article IV, Section 4 “requires justiciability, and justiciability requires standing.”

Id. ¶ 11. It concluded specifically that “[t]hese constitutional requirements cannot be bent to

accommodate Sheward.” Id. Despite that unmistakable guidance, the appeals court bent the

constitution to accommodate Sheward and find standing for Preterm.

Further, the appeals court compounded its error by suggesting that jurisdiction was

needed here because of the political nature of the issues and a “need[] . . . for resolution,” App.

Op. ¶ 31, and because standing was being used as a “technique[]” for “blocking” parties from

“having their day in court,” id. ¶ 29. The court said such “blocking” occurred “because the

16

subject matter [Preterm] bring[s] forward is inherently divisive, volatile, repulsive, or just plain

difficult.” Id. The court was wrong to say that the subject matter led to “blocking” court access,

and it has been more wrong to relax standing rules to allow a lawsuit to proceed with no injury

shown.

This Court has already explained that standing requirements do not fall away merely

because an issue is controversial or allegedly “needs space for resolution.” The Court said in

JobsOhio that “ideological opposition to a program or legislative enactment is not enough” to

confer standing. 2014-Ohio-2382 ¶ 1. Similarly, ideological opposition to casinos did not

overcome the lack of concrete injury in Walgate, 2016-Ohio-1176 ¶¶ 15, 20-29. Thus, Preterm

or any plaintiff must prove established standing requirements, with no shortcuts based on an

alleged need to resolve “uncomfortable” or “divisive” issues. In addition, Preterm fails to

explain why its suit is “needed” to resolve this issue. Indeed, some of the issues here are before

this Court in another pending case, Capital Care Network of Toledo v. State of Ohio Dept. of

Health, Case No. 2016-1348. The State is not “blocking” any legitimate plaintiff’s day in court,

but seeks only to follow the Constitution and respect the jurisdictional limits that Ohio’s citizens

have established.

Equally important, the court below should never have sought to resolve the case on these

grounds, but should have simply held Preterm to traditional standing rules. Instead, the court’s

entire approach to standing as something to “dispense with” on policy grounds appears to have

affected its application of standing to each provision that Preterm challenges. As shown in both

Parts B and C below, proper application of settled rules leads to the conclusion that Preterm

lacks standing as to all.

17

B. A plaintiff challenging a statutory provision must show harm from that provision, and no exception allows a plaintiff challenging one provision of a budget bill on one-subject grounds to challenge other provisions that do not affect the plaintiff.

Applying standing doctrine to this case is straightforward as to all counts, but is

especially easy as to Preterm’s attack on the Pregnancy and Parenting Provision. Preterm admits

candidly that the provision, which funds a program designed to produce healthier outcomes for

babies, does not affect Preterm at all. See App. Op. ¶ 21. Preterm says that it can challenge that

provision because it challenges other select provisions that were enacted in the same 2013

budget bill, and the appeals court said that was good enough. See id. ¶ 28. But that is wrong.

That claim fails under well-established standing law, which requires that an actual injury be

shown for each count. No exception allows plaintiffs challenging some parts of a budget bill on

one-subject grounds to then add tagalong challenges to any other provisions in the same bill.

1. Standing is claim-specific, as it must be to maintain constitutional limits.

Standing is claim-specific. That is, “a plaintiff must demonstrate standing for each claim

he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). Or, put another

way, “standing is not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). If it

were not so, the limits on judicial power could be easily evaded: “‘[t]he actual-injury

requirement would hardly serve the purpose . . . of preventing courts from undertaking tasks

assigned to the political branches[,] if once a plaintiff demonstrated harm from one particular

inadequacy in government administration, the court were authorized to remedy all inadequacies

in that administration.’” Cuno, 547 U.S. at 352 (quoting Lewis, 518 U.S. at 357) (alterations in

original) (emphasis omitted).

This Court has not directly stated this rule as such, but it has always applied the rule by

examining standing on a claim-by-claim basis. See, e.g., Walgate, 2016-Ohio-1176 ¶¶ 20-50

(analyzing separately each claim and finding that one plaintiff had standing for one claim but not

18

for others); Moore v. Middletown, 133 Ohio St. 3d 55, 2012-Ohio-3987 ¶¶ 24-32 (analyzing

separately each claim); Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948

¶¶ 83-84 (refusing to consider one claim based on plaintiff’s lack of standing with respect to that

claim). Most important, the Court’s claim-by-claim examinations have not just been claim-

specific discussions, but have repeatedly involved resulting judgments that found standing for

some claims and not others. For example, in Arbino, the Court refused to consider just one claim

for lack of standing, while reviewing many others. And in Walgate, the Court dismissed many

claims for lack of standing, while allowing just one to proceed. This case allows the Court to say

expressly what it has already held in fact.

2. No exception exists for one-subject challenges generally or challenges to budget bills in particular.

Standing is claim-specific in all cases, and no exception exists for cases such as this one.

To be sure, the Court has never considered such an exception, but everything about standing

doctrine and its elements leaves no room to create one now. As explained above, the doctrine

ensures that courts act only when necessary to resolve a controversy between parties, and by

definition, a party has no “controversy” with a provision that does not affect it. Further, the

elements of standing require not only that a concrete injury be shown, but also that the injury be

traceable to the challenged act and that relief would redress the injury. Walgate, 2016-Ohio-

1176 ¶ 20. If a plaintiff were injured by only one law, but could challenge a second law that did

not injure it, it cannot be said that its injury from the first law is “traceable” to the second.

Moreover, if the plaintiff succeeded on the merits against the second law, that would not redress

its injury from the first. Its success on that score would redress nothing. Cf. id. ¶¶ 27-28

(finding that alleged injuries would not be redressed by invalidating state law).

19

Further, the context of a one-subject challenge, or more specifically, a one-subject

challenge to select provisions in a budget bill, provides no sound reason to vary from the general

rule. As the court below noted, the Tenth District has suggested that a plaintiff may have

standing to challenge an entire bill on one-subject grounds, even if injured only by one provision

but not others, “‘where [the plaintiff] challenges the enactment of the legislation in its entirety.’”

App. Op. ¶ 13 (quoting Akron Metro., 2008-Ohio-2836 ¶ 14). Assuming for argument’s sake

that the Tenth District was right in Akron Metro—and the Court need not decide that to resolve

this easier case—both its holding and reasoning were limited to the scenario where the plaintiff

sought to invalidate an entire bill. Akron Metro was one of those rare cases in which a plaintiff

alleged—and the court agreed—that the bill had no identifiable “‘primary’ subject matter” at all.

2008-Ohio-2836 ¶ 27; see id. ¶¶ 14, 28; see State ex rel. Ohio Civ. Serv. Emps. Ass’n v. State,

146 Ohio St. 3d 315, 2016-Ohio-478 ¶ 22 (“OCSEA”) (noting that invalidation of entire bill is

reserved for “the rare instance when we have been unable to discern a primary subject” at all).

In Akron Metro, the court invalidated the entire bill, as it could not follow the more common

path of invalidating only unrelated provisions and preserving the core—as, again, it could find no

core to preserve. 2008-Ohio-2836 ¶¶ 27-28.

In that situation—when the merits of the case involved all-or-nothing invalidation of the

bill—the court accordingly said that standing, in parallel with the merits, would be bill-wide.

That made sense as a principled matter, said the court, as the “claim” was that the bill was

invalid. Id. ¶ 14 (“Plaintiffs, however, did not limit their constitutional challenge to one or more

specific provisions of the bill. Rather, plaintiffs challenged the enactment of [the bill] in its

entirety.). And it made sense as a practical matter, said the court, because “to deny plaintiffs

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

20

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

legislation.” Id.

But the Akron Metro approach, even if right, does not extend, and should not extend, to

this case. As detailed below in Part B.3, Preterm does not challenge the entire bill, but seeks

only to invalidate select provisions.

Allowing such an exception to claim-specific standing is not only wrong on principle, but

it would have expansive and harmful practical implications. Here, for example, Preterm could

have challenged any of hundreds of provisions in the 2013-2014 budget bill, including other

funding provisions, revenue provisions, or operational provisions. And this rule could not

legitimately be limited to abortion. A nurse with standing to challenge nursing regulations could

attack an agriculture provision. A school district could challenge spending restrictions on the

Department of Veterans Services. This is precisely the scenario the standing rules are designed

to prevent. Tate v. Garfield Heights, 8th Dist. Cuyahoga No. 99099, 2013-Ohio-2204 ¶ 12

(noting that “a general interest in the subject matter of the action” does not suffice to confer

standing).

Indeed, these implications are not just obvious in theory, but have already occurred in

another case after the Tenth District applied a similar, mistaken approach, demonstrating the

problem. See State ex rel. Ohio Civ. Serv. Emps. Ass’n v. State, 2013-Ohio-4505 ¶ 24, rev’d,

2016-Ohio-478. That court found that a plaintiff had standing to challenge some provisions on

one-subject grounds, and remanded for the trial court to comb through the bill and find other

possible candidates for selective invalidation, even if those provisions did not affect the plaintiff.

Id. This Court reversed that decision, but it did so by finding no one-subject violation, and did

not need to reach the question of remanding to find “other” violations as a result. OCSEA, 2016-

21

Ohio-478 ¶¶ 33-34. Similarly, in Village of Linndale v. State, 2014-Ohio-4024 ¶ 19, the Tenth

District invalidated, on one-subject grounds, a provision in a budget bill banning texting while

driving. But the plaintiff there, a village, not only had no standing as to that provision, but also

did not even challenge it in its complaint. While this Court denied review of the State’s appeal

there (and of the village’s appeal on other issues), the State respectfully suggests that the

outcome there should not be repeated.

3. Preterm admits that it is not harmed by the Parenting and Pregnancy Provisions, so that dooms its claim to standing to challenge them.

The principles explained above—that standing is claim-specific and that no exception

applies here—lead easily to rejecting Preterm’s claim of standing to challenge the Parenting and

Pregnancy Provisions, as Preterm admits that the Provisions do not affect it. That is, Preterm has

never tried to establish standing as to these Provisions, relying solely on the idea that it need not

show standing here as long as it challenges other parts of the same bill. App. Op. ¶ 21 (noting

that “Preterm apparently concedes that it has not been injured by” those provisions, and relies on

challenging other provisions.); Preterm Appellant’s Br. (8th App.) at 26-27; Opp. Jur. at 6-7.

Thus, the Court needs no further analysis to apply the above rules to the facts here. If it adopts

the above rules (as it should), Preterm has no standing to challenge the Parenting and Pregnancy

Provisions.

The only other possibly relevant fact is that Preterm indisputably seeks to invalidate only

the select provisions at issue; it does not seek to invalidate the entire 2013 budget bill, even as an

alternative. The complaint specifies, in the prayer for relief, that Preterm seeks to enjoin only the

itemized provisions. See Compl. at 15. Preterm has never briefed any alternative request to

invalidate the entire bill, nor could it do so plausibly, as of course the 2013 budget bill has a

“primary subject matter”—the budget.

22

Moreover, while the merits of the one-subject claims are not before the Court, the State

notes that Preterm cannot have it both ways: It cannot “package” these four provisions as one

item for standing purposes, but then turn around and seek individual review of each provision on

the merits of its one-subject claims. If these were truly one package—and they are not—then

they would need to be reviewed that way on the merits. The State would need only to show

some connection between any part of this package of provisions and the budget. The State is

confident that it easily meets that test, since, for example, the Parenting and Pregnancy

Provisions are spending provisions, which are of course what a budget is all about. Preterm

cannot package its distinct attacks as one unit for standing purposes, but then separate them again

to try to win against any separate provisions it can on the merits. That is not to say that it has

standing as to any, nor is it to say that any of Preterm’s claims are meritorious, but merely to

show that Preterm’s approach does not add up. Standing is claim-specific, and where the merits

involve separate consideration of issues with possibly distinct outcomes, those issues are

separate claims.

4. The Eighth District’s contrary view, creating an exception to standing rules, was mistaken.

The Eighth District was mistaken in carving out an exception to grant standing to Preterm

to challenge the Parenting and Pregnancy Provisions. The court offered two justifications, but

neither withstands scrutiny.

First, as explained above in Part B.2., the court purported to follow the Tenth District’s

approach in Akron Metro, but that reliance is mistaken on Akron Metro’s own terms. See App.

Op. ¶ 13 (citing Akron Metro., 2008-Ohio-2836 ¶ 14). Akron Metro was limited to cases

“where” a plaintiff challenges the bill “in its entirety.” 2008-Ohio-2836 ¶ 14. Again, this is not

such a case, as Preterm seeks to enjoin only select provisions. It wishes to rely on a whole-bill

23

theory to then cherry-pick whatever it wishes in a bill, but without having to challenge it all, and

without the burden of meeting the more stringent test used for whole-bill challenges. See

OCSEA, 2016-Ohio-478 ¶ 22 (noting rarity and difficulty of whole-bill claims).

Second, the Eighth District was also mistaken in trying to justify a relaxed standing

approach because, in its view, “Preterm has been the intended target of certain regulatory

provisions.” App. Op. ¶ 23. That is wrong factually and legally. Factually, the Parenting and

Pregnancy Provisions do not “target” Preterm. Preterm never sought funding under those

provisions or any predecessor programs, so it cannot claim any “targeting.”

The State also notes that the other provisions do not “target” Preterm either. The Written

Transfer Agreement Provisions apply to all ambulatory surgical facilities, not merely abortion

clinics, which are fewer than ten of the approximately 267 ambulatory surgical facilities in Ohio.

The Public Hospital Provision likewise does not “target” Preterm, whose agreement is with a

private hospital. Finally, the Heartbeat Provisions, which admittedly concern abortion, do not

“target” clinics, but instead regulate doctors.

Legally, the court’s novel “targeting” theory of standing—which seems to relax standing

rules when courts find that “inherently divisive” matters are at issue, App. Op. ¶ 29—has no

basis in case law. To the contrary, the appeals court’s suggestion conflicts with the established

rule that “‘ideological opposition to a program or legislative enactment is not enough’” to confer

standing. Walgate, 2016-Ohio-1176 ¶ 18 (quoting JobsOhio, 2014-Ohio-2382 ¶ 1).

Consequently, Preterm has no standing to challenge the Parenting and Pregnancy

Provisions.

24

C. To show standing, an injury must be impending and not speculative, must be concrete and not de minimis, and must affect the plaintiff and not others; and therefore, Preterm fails to show standing on the remaining claims.

Beyond the legal flaws in Preterm’s novel bulk-standing theory, Preterm cannot satisfy

the standing requirements for any of its other claims. Straightforward application of well-settled

injury principles shows why. Injury for standing purposes must: (1) be impending, not

speculative; (2) be concrete and palpable, not de minimis; and (3) affect the plaintiff, not some

other party or entity not involved in the litigation. At the summary-judgment stage, a plaintiff

must satisfy each of these requirements with the requisite level of proof. Because the plaintiff

must prove standing “with the manner and degree of evidence required at the successive stages

of litigation,” a plaintiff at the summary-judgment stage “can no longer rest on . . . mere

allegations, but must set forth by affidavit or other evidence specific facts,” to satisfy the

elements of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quotations

omitted); see also Walgate, 2016-Ohio-1176 ¶ 50 (recognizing that a plaintiff faces a higher

evidentiary burden to show standing at the summary-judgment stage than at the motion-to-

dismiss stage: “Whether Kinsey could conclusively demonstrate standing were he faced with a

motion for summary judgment is not before us. But under the standards prescribed for dismissal

under Civ.R. 12(B)(6), Kinsey has sufficiently alleged standing to withstand appellees’ motion to

dismiss.”).

The trial court correctly applied these basic principles. It concluded that, while Preterm’s

allegations of injury may have been enough to survive dismissal, its vague and speculative

assertions and unsupported theories no longer sufficed at the summary-judgment stage. The

Eighth District reached a different result only by relaxing Preterm’s burden and overlooking the

well-established legal requirements for standing. The Eighth District was wrong to upset the

trial court’s judgment, and this Court should reverse the finding of standing as to all provisions.

25

1. An injury may not be speculative, so Preterm has no standing to challenge the Public Hospital Provision, as it has an agreement with a private hospital.

To confer standing, “injury cannot be merely speculative.” ProgressOhio.org, Inc. v.

JobsOhio, 2012-Ohio-2655 ¶ 8 (10th Dist.). “A bare allegation that plaintiff fears some injury

will or may occur is insufficient to confer standing.” Wurdlow v. Turvy, 2012-Ohio-4378 ¶ 15

(10th Dist.) (citing Los Angeles v. Lyons, 461 U.S. 95 (1983); see also Lyons, 461 U.S. at 102

(“[I]njury or threat of injury must be ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’”).

As the U.S. Supreme Court has “repeatedly reiterated,” “threatened injury must be certainly

impending to constitute injury in fact, and . . . [a]llegations of possible future injury are not

sufficient.” Clapper, 133 S. Ct. at 1147 (2013) (quotation omitted) (second alteration in

original).

This foundational standing principle dooms Preterm’s standing to challenge the Public

Hospital Provision. Preterm’s theory of injury from this provision rests entirely on fears of

“possible future injury.” By its terms, the Public Hospital Provision affects only written transfer

agreements with public hospitals. As Preterm admits, it has a written transfer agreement with a

private hospital, and that agreement has been in place for more than a decade. See Plaintiff’s

Response to State Defendants’ First Set of Requests for Admission, Response # 2; 2005 Patient

Transfer Agreement. Thus, Preterm must acknowledge that the Public Hospital Provision does

not currently affect it. See Response Brief at 7 (stating that it not only challenges the prohibition

on agreements with public hospitals, but also “those [provisions] that directly affect Preterm”).

Preterm has no “legally protected interest” for standing purposes in a restriction that only affects

other providers. See, e.g., Atl. Urological Assocs., P.A. v. Leavitt, 549 F. Supp. 2d 20, 28-29

(D.D.C. 2008) (noting that doctors who did not “render services under the Medicare program”

26

lacked standing to challenge Medicare rule because they did not “have a legally protected

interest in the receipt of payment for services provided by other physicians”).

Preterm cannot fill this evidentiary gap by speculating about theoretical future harms.

Preterm contends that, even though it is not currently harmed by the Public Hospital Provision, it

could be harmed in the future because it “may only seek a written transfer agreement with a

more limited number of hospitals than in the past.” Harrington Aff. ¶ 27, Supp. S-4. Preterm

speculates that it “faces a greater risk of loss or revocation than before HB 59 was passed.” Id. ¶

28.

Although Preterm fails to explain how the Public Hospital Provision increases its risk, its

argument appears to be premised on the following hypothetical scenario: If at some point in the

future, the private hospital with which it currently has a written transfer agreement were to refuse

to renew the agreement, then Preterm would need to obtain a written transfer agreement from

another hospital; and, in that counterfactual world, Preterm might have a more difficult time

finding a new hospital with which to renew its agreement because public hospitals would be

prohibited from entering into such an agreement, and other private hospitals could theoretically

decline to do so. And if Preterm ultimately could not obtain a new written transfer agreement,

then it might lose its license (if it does not request and obtain a variance from the requirement).

But this is precisely the type of highly “speculative chain of possibilities” that courts have

consistently rejected as a basis for standing. Clapper, 133 S. Ct. at 1150.

In Clapper, the plaintiffs challenged provisions of the Foreign Intelligence Surveillance

Act of 1978, which authorized the government to conduct surveillance of certain individuals.

The plaintiffs, attorneys and various organizations who allegedly worked with individuals likely

to be targeted by the act, alleged they had a reasonable fear that their communications would be

27

intercepted at some point in the future. Id. at 1147. But the Court “declin[ed] to abandon our

usual reluctance to endorse standing theories that rest on speculation about the decisions of

independent actors.” Id. at 1150. The Court held that even an “objectively reasonable

likelihood” that a threatened injury will occur does not suffice. Id. at 1147. Rather, to prove

standing, injury traceable to the challenged statute must be “certainly impending.” Id.

Preterm’s hypothetical scenario is far from “certainly impending.” Indeed, the fact that

Preterm has had its written transfer agreement in place for more than a decade, including more

than three years during which the Public Hospital Provision has been in effect, renders Preterm’s

feared scenario all the more implausible. There is no basis for speculating that the private

hospital would withdraw its agreement with Preterm.

Moreover, to the extent such risk exists, it is neither new nor the result of the Public

Hospital Provision. As Preterm’s 2005 WTA reveals, its agreement was always terminable at

will by either party. See 2005 Patient Transfer Agreement ¶ 11(d), Supp. S-9. Thus, even before

the new law was passed, Preterm faced a risk that its written transfer agreement could be

terminated. And such risk would continue even if this Court were to strike down the Public

Hospital Provision, as Preterm asks it to do. In other words, even if Preterm’s theorized future

harm qualified as an injury for standing (it does not), it would still fail because it is neither

traceable to the challenged provision nor redressable by striking down the provision.

Accordingly, because Preterm’s conjectural theory of increased risk fails, Preterm lacks

standing to challenge the Public Hospital Provision.

2. An injury must be concrete and palpable, so Preterm has no standing to challenge the Written Transfer Agreement Provisions requiring it to renew its agreement biennially and send it to the Department.

Preterm’s standing theory for the remaining Written Transfer Agreement Provisions fares

no better. Its theory for these provisions fails the requirement that injury must be “concrete.” As

28

the U.S. Supreme Court recently clarified, “a concrete injury must be de facto; that is, it must

actually exist and be real, and not abstract.” Spokeo, 136 S.Ct. at 1548-49 (2016) (quotations

omitted). To be sure, an injury need not be economic or severe or even tangible to satisfy

standing. JobsOhio, 2012-Ohio-2655 ¶ 8. But it must be “palpable.” Id. And it must give the

party a “direct, personal stake in the outcome of his or her case.” JobsOhio, 2014-Ohio-2382

¶ 1. “[I]deological opposition to a program or legislative enactment is not enough.” Id.

Preterm cannot satisfy this threshold requirement. It identifies no concrete burden

resulting from the Written Transfer Agreement Provisions that did not already exist as a result of

preexisting regulations. In large part, the new law merely codified regulations enforced by the

Department of Health with which Preterm was already obligated to comply. See Ohio Adm.

Code 3701-83. Accordingly, the Written Transfer Agreement Provisions imposed no new or

materially different burdens on Preterm, and Preterm lacks standing to challenge them.

The court in Leavitt illustrated why this is so. There the plaintiffs challenged a final

agency rule that, while not identical to a prior rule, imposed the same substantive obligations on

the plaintiffs: “The exact language of the Anti–Markup Rule and the Final Order is not identical

but the impact on these Plaintiffs is the same.” Leavitt, 549 F. Supp. 2d at 28. The court

concluded that the plaintiffs lacked standing to challenge the new rule because it “did nothing to

alter that new landscape as it affected [the plaintiffs].” Id. “Since the Final Order did not change

anything for these Plaintiffs, invalidating it would not afford them any relief.” Id. Accordingly,

the plaintiffs failed to show any injury that could be redressed by striking down the new law.

The same is true here: Codification of the Written Transfer Agreement Provisions did

nothing to “change the legal landscape” for Preterm. Although the two-year renewal

requirement is new, the alleged burdens it imposes do not increase the overall responsibilities

29

Preterm faces. Both before and after the new law was enacted, Preterm was required to maintain

an updated written transfer agreement at all times. Ohio Adm. Code 3701-83-04(D), 3701-83-

19(E). And both before and after the new law was enacted, Preterm was required to submit a

copy of that agreement to the Department of Health on request. Id. And ambulatory surgical

facilities like Preterm were already required to renew their license application every year and to

submit supporting paperwork to the Department of Health as part of that application process.

Ohio Adm. Code 3701-83-04(B).

Ultimately, the only actual change that Preterm identifies is how it shows compliance

with the Written Transfer Agreement requirements. Before the new law, it had to show the

Department of Health its updated agreement on request. Now, it must include a copy of the

agreement with the paperwork it sends to the Department of Health to renew its license

application. In other words, Preterm always had to demonstrate its compliance with the written

transfer agreement requirements, but the new law changed how it does so. Preterm fails to

demonstrate how this logistical change adds to its burden. Preterm’s unsubstantiated allegation

that sending its agreement to the Department of Health increased its “administrative burdens”

falls far short of the “real” and “concrete” injury necessary for standing.

In short, the material burdens Preterm purportedly bears as a result of the Written

Transfer Agreement Provisions existed previously as part of the conditions of licensure and

would continue to exist even if the Written Transfer Agreement Provisions were invalidated

now. Preterm lacks standing to challenge these provisions.

3. An injury must affect the plaintiff and not others, so Preterm has no standing to challenge the Informed Consent Provisions that govern doctors.

Finally, Preterm’s standing theory with respect to the Informed Consent Provisions fails

because it relies on harms to doctors, not to Preterm. Therefore, it cannot overcome the

30

fundamental standing rule that injury must have a “direct and immediate impact on the

plaintiffs.” JobsOhio, 2014-Ohio-2382 ¶ 11; N. Canton v. Canton, 114 Ohio St. 3d 253, 2007-

Ohio-4005 ¶¶ 11, 14 (noting that, to have standing, “a litigant must assert its own rights, not the

claims of third parties”). This requirement is no mere technicality, but rather lies at the very

heart of the justiciability requirement. At bottom, standing exists to ensure that the proper

parties—those most directly affected by the challenged conduct—present disputes to the courts

for resolution. As this Court has stated, “[t]he essence of the doctrine of standing is whether the

party seeking relief has alleged such a personal stake in the outcome of the controversy as to

assure that concrete adverseness which sharpens the presentation of issues upon which the court

so largely depends for illumination.” Walgate, 2016-Ohio-1176 ¶ 18 (quotations omitted).

Even a cursory review of Preterm’s claims regarding the Informed Consent Provisions

shows the wrong plaintiffs bring this suit. By their terms, the Informed Consent Provisions

describe a doctor’s duties to provide information to a patient receiving an abortion and the

penalties on the doctor for failure to comply with these obligations. These provisions do not

impose any obligations on the clinics in which the doctors provide the abortion. Standing

principles dictate that the abortion doctors, not the abortion clinics, are the proper parties to bring

any challenge to these requirements. Yet Preterm has not included a doctor as a named plaintiff

in this litigation, and no doctor has tried to intervene. Indeed, Preterm declined even to present

any evidence from a doctor regarding the impact of these provisions. This mismatch between

injury and plaintiff is fatal to Preterm’s challenge. See N. Canton, 2007-Ohio-4005 ¶¶ 16-17

(holding that case was not justiciable when “the proper party to challenge the statute” “did not

choose to file suit, nor has it even attempted to intervene in this case”); cf. Leavitt, 549 F. Supp.

2d at 28-29 (holding that a management company that “assists physician practices in developing,

31

implementing, managing and operating urology pathology laboratories” lacked standing to

challenge Medicare billing rules affecting doctors’ receipt of Medicare payments where the

company was not itself “a Medicare provider or supplier and does not itself perform or bill for

any laboratory tests or interpretations”).

Importantly, Preterm has not tried to assert third-party standing here. To the contrary, it

has repeatedly disavowed any attempt to bring claims on behalf of its doctors. And notably,

Preterm could not legally assert third-party claims on behalf of doctors even if it tried to do so.

“Third-party standing is not looked favorably upon,” and is warranted only “when a claimant (i)

suffers its own injury in fact, (ii) possesses a sufficiently close relationship with the person who

possesses the right, and (iii) shows some hindrance that stands in the way of the claimant seeking

relief.” Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio St. 3d 284, 2009-Ohio-6764

¶ 49 (quotations omitted). Preterm could not make such a showing here because, among other

problems, it has not alleged that the doctors are hindered in their ability to pursue their own

rights. Nor could it credibly raise such an argument given that doctors routinely participate in

abortion challenges. That doctors can and do assert their own claims makes third-party standing

improper here. Id. (rejecting the plaintiff utility company’s attempts to assert taking claims on

behalf of third-party property owners when it had “not shown that any barrier would hinder a

property owner from asserting his or her own takings claim”); N. Canton, 2007-Ohio-4005 ¶ 17

(holding that plaintiff had “no legal right to assert the equal protection rights of [a third party]

when there is nothing that prohibits [that party] from asserting its own claim”).

Moreover, as a practical matter, the fact that the doctors could pursue their own rights,

but have elected not to, is reason alone to be cautious in adjudicating those rights without the

doctors present. As the U.S. Supreme Court observed, “courts must hesitate before resolving a

32

controversy . . . on the basis of the rights of third persons not parties to the litigation . . .

[because] it may be that in fact the holders of those rights . . . do not wish to assert them.”

Singleton v. Wulff, 428 U.S. 106, 113-14 (1976).

Preterm cannot circumvent its failure to satisfy third-party standing requirements by

repackaging the doctors’ injuries as their own. Preterm asserts two arguments in support of its

own purported injury from the Informed Consent Provisions, but neither survives scrutiny. First,

Preterm’s theory that the Informed Consent Provisions could be enforced directly against clinics

is far too speculative to confer standing. The criminal-enforcement provisions govern person

who perform abortions. And even if the provisions could be read to permit criminal proceedings

against abortion clinics directly—a proposition for which Preterm cites no authority—Preterm’s

fear of prosecution hinges on pure speculation and does not give rise to standing. The mere

“possibility of criminal sanctions applying does not in and of itself create a case or controversy.

Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 293 (6th Cir. 1997). As the U. S. Supreme

Court recently reiterated, “pre-enforcement review” is appropriate only “under circumstances

that render the threatened enforcement sufficiently imminent.” Susan B. Anthony List v.

Driehaus, 134 S.Ct. 2334, 2342 (2014). At a minimum, a plaintiff must show “an intention to

engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a

statute, and there exists a credible threat of prosecution thereunder.” Id. (emphasis added)

(quotation omitted). Preterm fails to show a credible threat that it will be prosecuted under the

Informed Consent Provisions. To the contrary, the prosecution Preterm imagines would come

about only if (1) one of its doctors violates the Informed Consent Provisions; and (2) a

prosecutor interprets the Informed Consent Provisions to impose direct liability on an abortion

provider (an unlikely scenario given that Preterm itself did not suggest such a reading until its

33

final brief a year and a half after the law was enacted); and (3) that prosecutor initiates an action

against Preterm. The speculative possibility of prosecution is a far cry from the “credible threat”

that Preterm is required to prove to have standing for the instant pre-enforcement challenge to

the Informed Consent Provisions. Susan B. Anthony List, 134 S. Ct. at 2342.

The only other method by which the Informed Consent Provisions can be enforced—

disciplinary action by the Medical Board—does not apply to Preterm. The Medical Board’s

jurisdiction is over the doctors who provide abortion, not the clinics. That one of the primary

methods of enforcement does not apply to Preterm renders the alleged threat of any future harm

even more implausible. Moreover, it further underscores that any challenge to these provisions

belongs to the doctors, not Preterm. Indeed, it highlights yet another problem with Preterm’s

alleged injury. Preterm presumably named the Medical Board as a defendant precisely because

it is the entity primarily responsible for enforcing the Informed Consent Provisions. But

preventing the Medical Board from taking any disciplinary action under these provisions would

not redress any purported injury Preterm claims to suffer.

Preterm’s second theory of harm, that it has changed its policies in response to these

provisions, similarly fails. As explained above, the Informed Consent Provisions are directed

solely at doctors’ obligations. These provisions do not impose any obligation on Preterm or any

other clinic to revise its policies or take any other action. Thus, even accepting as true Preterm’s

allegation that it made changes to its policies, such voluntary changes do not constitute injury for

purposes of standing. “In other words, respondents cannot manufacture standing merely by

inflicting harm on themselves based on their fears of hypothetical future harm that is not

certainly impending.” Clapper, 133 S.Ct. at 1151.

34

In any event, Preterm’s theory fails to satisfy the traceability and redressability prongs of

the standing analysis. Preterm does not allege that it would have made no updates to its policies

and procedures absent passage of the Informed Consent Provisions. Merely including content

relevant to the Informed Consent Provisions as part of policies and procedures that Preterm

would have provided anyway is not a cognizable injury. Cf. Fair Elections Ohio v. Husted, 770

F.3d 456, 459-60 (6th Cir. 2014) (“[I]t is not an injury to instruct election volunteers about

absentee voting procedures when the volunteers are being trained in voting procedures

already. . . .”). And even if it were an injury, it would not be redressed by this lawsuit. To the

contrary, striking down the laws would require Preterm to revise and update its policies again to

comport with the Court’s decision. Id. at 460. (“[E]ven if this instruction were an injury, any

likely redress by this court would simply substitute a different procedure, which AMOS must

teach its volunteers instead.”).

To hold that a plaintiff satisfies standing “merely by virtue of its efforts and expense to

advise others how to comport with the law, or by virtue of its efforts and expense to change the

law” would eviscerate the standing limitations and should not be allowed. Id.

Because Preterm fails to establish any redressable injury of its own resulting from the

Informed Consent Provisions and has elected not to name a doctor as a plaintiff, Preterm lacks

standing to challenge these provisions.

4. The Eighth District’s contrary views on each point were mistaken.

The Eighth District deviated from these well-established standing principles to conclude

that Preterm has standing. According to the majority, “Preterm has established injury in at least

one of the provisions of HB 59, and it is the direct target of such legislation.” App. Op. ¶ 28.

Although not entirely clear, the court appeared to premise its conclusions on Preterm’s

35

allegations regarding the Written Transfer Agreement Provisions and the Informed Consent

Provisions. The court was wrong.

At the outset, one fundamental error pervades the court’s analysis and undermines all of

its conclusions. The court mistakenly adopted Preterm’s argument that the Written Transfer

Agreement and Informed Consent Provisions directly “target” Preterm and that this targeting

somehow lessens Preterm’s burden to show standing. See Preterm’s Appellant Br. at 16-18.

This theory is factually flawed. The Written Transfer Agreement provisions relate to all

ambulatory surgical facilities; they do not target abortion facilities. Nor do the Informed

Consent Provisions target abortion clinics, such as Preterm. Rather, these provisions regulate

and impose obligations on doctors who actually perform the abortions. See R.C. 2919.191; R.C.

2919.192. Of the provisions that Preterm challenges, only one, the Public Hospital Provision,

refers to abortion facilities. And that provision, as explained above, is directed at the public

hospitals themselves, and that in turn affects only facilities that have written transfer agreements

with such public hospitals, not clinics like Preterm that have agreements with private hospitals.

In concluding otherwise, the Eighth District ignored the plain text of the provisions

themselves, relying instead on what it believed is “abundantly clear and universally understood”

that “Preterm has been the intended target” of the challenged provisions. App. Op. ¶ 23. The

court was wrong to supplant the record and plain text of the challenged provisions with its

hyperbolic views of what is “universally understood” as reality.

The court compounded its error by relying on this flawed theory to relax standing

requirements—essentially offering Preterm an unprecedented standing shortcut. This relaxation

of the requirements is most readily apparent in the court’s analysis of the Informed Consent

Provisions. In that context, the court appears to have acknowledged that the provisions impose

36

regulations on abortion doctors, not clinics. But the court opined that “[p]hysicians 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” (all

assumptions for which no evidence or even argument from the parties had been presented). Id.

¶ 24. Thus, in the court’s view, it “necessarily follows” that the provisions target the clinic

where abortion services are performed, even if the text relates only to the doctor. Id. According

to the court, “[e]very woman and man in Ohio understands that reality, basic truth.” Id. Not

only is that wrong, but it would massively expand standing in countless cases. If clinics can sue

over laws that affect doctors, then any employer could sue over cases that affect their employees.

Such an expansion shows that the underlying principle is wrong, and this misunderstanding of

the standing requirements taints the court’s analysis and warrants reversal standing alone.

The court also wrongly concluded that Preterm’s vague allegations of administrative

burdens and changes to its policies and procedures constituted sufficient injury for standing

purposes. In reaching these conclusions, the court overlooked the fundamental standing

principles discussed above—requirements that injury be impending, concrete, and palpable and

not speculative and abstract.

The court further erred by relying on bare allegations of injury too conclusory to establish

standing at the summary judgment phase. As noted previously, at the summary judgment phase

a “plaintiff can no longer rest on . . . mere allegations, but must set forth by affidavit or other

evidence specific facts,” to satisfy the elements of standing. Lujan, 504 U.S. at 561 (quotation

omitted). Throughout its analysis, however, the court mistakenly relied on unsubstantiated

assertions (both Preterm’s and its own) to find injury.

37

The Eighth District’s standing analysis should have been straightforward—well-settled

principles show that Preterm lacks standing. Instead, the court adopted novel, unsupported

theories and assumptions to relax Preterm’s burden. This Court should reverse that decision.

* * *

As noted above, this case involves principles that are critical to uphold, yet involves rules

that are simple to apply. Ohio’s Constitution allows courts to hear only justiciable controversies

involving parties with standing, so relaxing the rules is unconstitutional. Applying the rules here

is straightforward: Preterm must show standing as to each provision it challenges, and it fails on

all counts. The Court should reverse the appeals court’s improper approach and mistaken results,

and it should reinstate the trial court’s correct decision that Preterm has no standing here.

38

CONCLUSION

For the above reasons, the Court should reverse the decision below and reinstate the trial

court’s decision granting summary judgment against Preterm for lack of standing.

Respectfully submitted, MICHAEL DEWINE (0009181) Ohio Attorney General

/s Eric E. Murphy ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record STEPHEN P. CARNEY (0063460) Deputy Solicitor RYAN L. RICHARDSON (0090382) TIFFANY L. CARWILE (0082522) Assistant Attorneys General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 614-466-5087 fax eric.murphy@ohioattorneygeneral.gov

Counsel for State Defendants-Appellants Governor John R. Kasich State of Ohio Ohio Department of Health and Interim Director Lance Himes Ohio Department of Job and Family Services and Director Cynthia C. Dungey State Medical Board and its members (Dr. Amol Soin, Robert Giacalone, Dr. Kim Rothermel, Dr. Bruce Saferin, Dr. Mark Bechtel, Dr. Richard Edgin, Dr. Ronan Factora, Michael Gonidakis, Donald Kenney, Sr., Dr. Andrew Schachat, Dr. Michael Schottenstein, and Dr. Anita M. Steinbergh)

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Merit Brief of State Defendants-Appellants was

served by regular U.S. mail this 24th day of April 2017, upon the following counsel:

Charles E. Hannan Assistant Prosecuting Attorney Cuyahoga County Prosecutor’s Office Justice Center Bld., 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 Counsel for Defendant-Appellee Prosecutor McGinty

B. Jessie Hill Case Western Reserve University School of Law 11075 East Blvd. Cleveland, Ohio 44106 Counsel for Plaintiff-Appellee Preterm-Cleveland, Inc.

Susan O. Scheutzow Justine Lara Konicki Kohrman Jackson & Krantz LLP One Cleveland Center, 29th Floor 1375 East Ninth Street Cleveland, Ohio 44114-1793 Co-Counsel for Plaintiff-Appellee Preterm-Cleveland, Inc.

Lorie A. Chaiten Roger Baldwin Foundation of ACLU, Inc. 180 North Michigan Ave. Suite 2300 Chicago, Illinois 60601 Co-Counsel for Plaintiff-Appellee Preterm-Cleveland, Inc.

Drew S. Dennis Freda J. Levenson American Civil Liberties Union of Ohio Foundation 4506 Chester Avenue Cleveland, Ohio 44103 Co-Counsel for Plaintiff-Appellee Preterm-Cleveland, Inc.

/s Eric E. Murphy Eric E. Murphy State Solicitor

APPENDIX

In the

Supreme Court of Ohio

PRETERM-CLEVELAND, INC., Plaintiff-Appellee, v. GOVERNOR JOHN R. KASICH, et al.,

Defendants-Appellants

: : : : : : : : :

Case No. _______ On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No. CA-15-103103

NOTICE OF APPEAL OF STATE DEFENDANTS-APPELLANTS

B. JESSIE HILL* (0074770) *Counsel of Record Case Western Reserve University School of Law 11075 East Blvd. Cleveland, Ohio 44106 216-368-0553; 216-368-2086 fax jessie.hill@case.edu

SUSAN O. SCHEUTZOW (0010950) JUSTINE LARA KONICKI (0086277) Kohrman Jackson & Krantz LLP One Cleveland Center, 29th Floor 1375 East Ninth Street Cleveland, Ohio 44114-1793 216-696-8700; 216-621-6536 fax sos@kjk.com

DREW S. DENNIS (0089752) FREDA J. LEVENSON (0045916) American Civil Liberties Union of Ohio Foundation 4506 Chester Avenue Cleveland, Ohio 44103 216-472-2220; 216-472-2210 fax ddennis@acluohio.org

MICHAEL DEWINE (0009181) Attorney General of Ohio

ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record STEPHEN P. CARNEY (0063460) Deputy Solicitor RYAN L. RICHARDSON (0090382) TIFFANY L. CARWILE (0082522) Assistant Attorneys General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980; 614-466-5087 fax eric.murphy@ohioattorneygeneral.gov

Counsel for State Defendants-Appellants Governor John R. Kasich State of Ohio Ohio Department of Health and Director Richard Hodges Ohio Department of Job and Family Services and Director Cynthia C. Dungey State Medical Board and its members (Michael Gonidakis, Dr. Amol Soin, Dr. Kim Rothermel, Dr. Bruce Saferin, Dr. Richard Edgin, Dr. Ronan Factora, Robert Giacalone, Donald Kenney, Sr., Dr. Andrew Schachat, Dr. Michael Schottenstein, and Dr. Anita M. Steinbergh)

Supreme Court of Ohio Clerk of Court - Filed August 22, 2016 - Case No. 2016-1252

APP-1

LORIE A. CHAITEN (pro hac vice 5548-2015) Roger Baldwin Foundation of ACLU, Inc. 180 North Michigan Ave., Suite 2300 Chicago, Illinois 60601 312-201-9740; 312-288-5225 fax lchaiten@aclu-il.org

JENNIFER LEE (pro hac vice 7587-2015) American Civil Liberties Union Foundation 125 Broad St., 18th Floor New York, New York 10004 212-549-2633; 212-549-2650 fax jlee@aclu.org

Counsel for Plaintiff-Appellee Preterm-Cleveland, Inc. TIMOTHY J. McGINTY (0024626) Cuyahoga County Prosecutor

CHARLES E. HANNAN (0037153) Assistant Prosecuting Attorney Justice Center Bld., 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 216-443-7758

Counsel for Defendant-Appellee Prosecutor McGinty

APP-2

NOTICE OF APPEAL OF STATE DEFENDANTS-APPELLANTS

State Defendants-Appellants Governor John R. Kasich, State of Ohio, Ohio Department

of Health and Director Richard Hodges, Ohio Department of Job and Family Services and

Director Cynthia C. Dungey, and State Medical Board and its members (Michael Gonidakis,

Dr. Amol Soin, Dr. Kim Rothermel, Dr. Bruce Saferin, Dr. Richard Edgin, Dr. Ronan Factora,

Robert Giacalone, Donald Kenney, Sr., Dr. Andrew Schachat, Dr. Michael Schottenstein, and

Dr. Anita M. Steinbergh) give notice of their jurisdictional appeal to this Court, pursuant to Ohio

Supreme Court Rules 5.02 and 7.01, from a decision of the Eighth District Court of Appeals

captioned Preterm-Cleveland, Inc. v. Governor John R. Kasich, et al., Case No. CA-15-103103.

The Eighth District’s decision was issued and filed on July 7, 2016.

A date-stamped copy of the Eighth District’s Judgment is attached as Appendix 1 to the

Appellants’ Memorandum in Support of Jurisdiction. A copy of the Opinion and Order of the

Cuyahoga County Court of Common Pleas is attached as Appendix 2.

For the reasons set forth in the accompanying Memorandum in Support of Jurisdiction,

this case raises a substantial constitutional question and is of great general interest.

Respectfully submitted,

MICHAEL DEWINE (0009181) Attorney General of Ohio

/s Eric E. Murphy ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record STEPHEN P. CARNEY (0063460) Deputy Solicitor RYAN L. RICHARDSON (0090382) TIFFANY L. CARWILE (0082522) Assistant Attorneys General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980

APP-3

614-466-5087 fax eric.murphy@ohioattorneygeneral.gov

Counsel for State Defendants-Appellants Governor John R. Kasich State of Ohio Ohio Department of Health and Director Richard Hodges Ohio Department of Job and Family Services and Director Cynthia C. Dungey State Medical Board and its members (Michael Gonidakis, Dr. Amol Soin, Dr. Kim Rothermel, Dr. Bruce Saferin, Dr. Richard Edgin, Dr. Ronan Factora, Robert Giacalone, Donald Kenney, Sr., Dr. Andrew Schachat, Dr. Michael Schottenstein, and Dr. Anita M. Steinbergh)

APP-4

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Notice of Appeal of State Defendants-Appellants

was served by ordinary U.S. mail this 22nd day of August, 2016, upon the following counsel:

Timothy J. McGinty Cuyahoga County Prosecutor Charles E. Hannan Assistant Prosecuting Attorney Justice Center Bld., 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 Counsel for Defendant-Appellee Prosecutor McGinty

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

Susan O. Scheutzow Justine Lara Konicki Kohrman Jackson & Krantz LLP One Cleveland Center, 29th Floor 1375 East Ninth Street Cleveland, Ohio 44114-1793

Drew S. Dennis Freda J. Levenson American Civil Liberties Union of Ohio Foundation 4506 Chester Avenue Cleveland, Ohio 44103

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

Jennifer Lee American Civil Liberties Union Foundation 125 Broad St., 18th Floor New York, New York 10004 Counsel for Plaintiff-Appellee Preterm-Cleveland, Inc.

/s Eric E. Murphy Eric E. Murphy State Solicitor

APP-5

urt of appeals! of #f)to

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

CV1381521494807248

94807248 APP-6

-1-

ATTORNEYS FOR APPELLANT

Beatrice Jessie Hill

Case Western Reserve University

School of Law |

11075 East Blvd.

Cleveland, OH 44! 06

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

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

& Krantz P.L.L.

APP-7

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

APP-8

TIM McCORMACK, J.:

{^f 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

{f 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 Meaical 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.; SushilM. 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.

{f 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

APP-9

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.

I

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

i

grounds that Preterm lacked standing to challenge HB 59. The trial court

denied defendants’ motion, finding that Preterm was “threatened with a direct

I

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

i

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

oppose. The remaining defendants also moved for summary judgment against

I

Preterm, claiming that Preterm lacked standing to challenge HB 59.

{^5} On May 18, 2015, following a hearing on summary judgment, the

I

trial court granted defendants’ motion regarding standing, finding that Preterm

lacked standing to challenge each of the relevant provisions of HB 59. The trial

j

court explained that its review upon summary judgment was much broader and

therefore permitted consideration of a wider range of admissible evidence. The

APP-10

court also granted (Prosecutor McGinty’s partial motion for summary judgment

j

regarding the “parenting and pregnancy provisions” and the “written transfer

i

agreement provisions,” finding such claims unopposed and conceded by Preterm.

Finally, determining that Preterm lacked standing, the trial court declined to

1

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

a violation of the one-subject rule.

{TO Preterm now appeals the trial court’s judgment, assigning the

i

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.

1 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

APP-11

specific facts demonstrating that there is a genuine triable issue. State ex rel.

Zimmerman u. Tompkins, 75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996).

{18} We review the trial court’s judgment de novo. Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Standing

{19} 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. 2016-Ohio-1176, 1 18;

Ohio Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320, 643 N.E.2d 1088 (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. u. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, 13

N.E.3d 1101, 1 7, quoting Moore v. Middletown, 133 Ohio St.3d 55,

2012-Ohio-3897, 975 N.E.2d 977, 1 22.

{110} The in;

LULAC v. Kasich,

ury need not be large or economic, but it must be “palpable.”

0th Dist. Franklin No. 10AP-639, 2012-Ohio-947, 1 21; see

State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451,

469-470, 715 N.E.2d 1062 (1999) (“any injury, however small, is sufficient for

purposes of private-action standing * * *”). The injury, however, may not be

merely speculative LULAC.

APP-12

{^[ 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

iin general.” Shewprd at 469-470. “[Pjrivate citizens may not restrain official

i

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

i

v. Ohio State Racing Comm., 162 Ohio St. 366, 368, 123 N.E.2d 1 (1954), citing

I

39 Ohio Jurisprudence, 22, Section 12; 52 American Jurisprudence, 3, Section 3.

ii

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

i

I

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

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

2008-Ohio-2836, 1 ill, quoting Sheward at 470.

Ii

{f 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, 131 Ohio St.3d 287, 2012-0hio-780, 964 N.E.2d 414,116; Planned

Parenthood Sw. Ohio Region u. Dewine, 64 F.Supp.3d 1060, 1065 (S.D.Ohio

i2014) (plaintiffs hlad standing to challenge a statute where ^ they were

|

“indisputably targeted” by the statute); Navegar, Inc. v. United States, 322

iU.S.App.D.C. 288, 1103 F.3d 994, 1000 (1997) (finding it unlikely that the

APP-13

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).

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

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

Il

enactment of the legislation in its entirety. Akron Metro. Hous. Auth. Bd. of

Trustees v. State, j 10th Dist. Franklin No. 07AP-738, 2008-Ohio-2836, 1 14.

I

“Because [the party] alleged injury resulting from the enactment of the

i

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

i

courts to decide.” Id. To deny standing in a case where a party alleged injury

i

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 bje assembled to cover the wide variety of subjects amassed in

I

a single piece of legislation.” Id.

I|

{114} Whether a party has established standing is a question of law,

which this court reviews de novo. Moore v. Middletown, 133 Ohio St.3d 55,

i

2012-Ohio-3897, 975 N.E.2d 977, 1 20, citing Cuyahoga Cty. Bd. of Commrs. v.

State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, 1 23.

j

{115} Here, Preterm contends that it has standing to challenge HB 59,

particularly as it rielates to the “heartbeat provisions,” the “written transfer

1

I

agreement provisions,” and the “parenting and pregnancy provisions.”

APP-14

Specifically, Preterm provides that it has suffered direct and concrete injury that

will be redressed oy 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.

{fl6} 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. j

{f IT) 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. SeeR.C. 2919.191; 2919.192; 2317.56. With

certain exceptions, no person shall perform an abortion before determining

whether there is a detectable heartbeat. Id. The failure to satisfy the provisions’

APP-15

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

APP-16

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

provisions.

{f 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

riot be renewed if, upon inspection, the director determines that the ASF has not

complied with “al quality standards established by the director” or the most

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

Id. 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).

APP-17

{if20} 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. Id. 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

APP-18

written transfer agreement provisions, is sufficient for purposes of establishing

standing.

{f 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

i

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 jestablished 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.

APP-19

{f 24} Defendants argue that the heartbeat provisions regulate and impose

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

I

JPhysicians, however, do not work alone. Physicians cannot and do not provide

Jabortion services without the organized administration, real estate, and medical

I

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

iperforming the abortion likewise target the clinic where the abortion is

i

ultimately performed. It is a site and medical team. To argue that the

II

provisions exclusively target just an individual performing the actual abortion

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

i

most disingenuous! Every woman and man in Ohio understands that reality,

basic truth. !

{^125} Preterm has demonstrated that it has changed its protocols and

j

procedures in orderj to comply with the new provisions in order to avoid criminal

prosecution, civil liability, or losing its ASF license. Specifically, Preterm

i

i

conducted extensive research, created a new “Fetal Heartbeat and Probability”

i

policy, created a new form detailing the new requirements, and incurred

additional staffingj 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!

1license renewal application.

APP-20

{^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, 2012-Ohio-947 (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 o

Collegiate Athletic

a self-certification form sufficient for standing); Natl.

Assn. v. Califano, 622 F.2d 1382, 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, 608 F.3d 1131,

.1144-45 (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, 78 F.3d 815 (2d Cir. 1996), rev’d on

other grounds, 521 U.S. 1114, 117 S.Ct. 2501, 138 L.Ed.2d 1007 (1997) (the

sheriffs additional, workload resulting from compliance with a gun-control

statute constituted injury for standing purposes).

{5f 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

APP-21

particular industry. Navegar, Inc. v. United States, 103 F.3d 994, 10001

D.C.Cir.1996). Thus, where there is a “threat of prosecution,” Preterm has

established standing. Id. at 1001.

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

j

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 rulje.

j

{^f 29} We no[te that this case has come to us because the constitutional

remedies of due pjrocess were thwarted. There are techniques very much

irecognized in law, jsuch as raising the issue of a party’s standing to sue, that

j

ultimately can help ensure fairness and relevant decision making. Precluding

i

litigants from movjing forward with their claims when they lack legitimate

standing has its place. Conversely, prematurely blocking parties in interest

i

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,

i

repulsive, or just pjlain 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

i

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

APP-22

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

courtsis 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.

{f 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.

APP-23

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. FILED AND JOURNALIZED

PER APP.R. 22(C)

JUL 0 7 2016

CUYAHOGA COUNTY CLERK

OF THE COURT OF APPEALS

By (0 — D,puty

IcCORMACKT JUDGE

EILEEN A. GALLAGHER, P.J., CONCURS;

MELODY J. STEWART, J„ DISSENTS (WITH SEPARATE OPINION

ATTACHED)

MELODY J. STEWART, J„ DISSENTING:

{135} 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

APP-24

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

and properly dismissed the complaint.

I

I. Standing

Ii

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

i

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

iunconstitutional because it contained abortion-related provisions that went

i

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.

{137} The case or controversy limitation that underpins notions of

1standing is “built on separation-of-powers principles [and] serves to prevent the

I

judicial process from being used to usurp the powers of the political branches.”

Clapper u. Amnesty Internatl. USA, 568 U.S._ _ , 133 S.Ct. 1138, 1146, 185

ii

L.Ed.2d 264 (2013)'. When a private litigant attacks the constitutionality of a

I

legislative enactment, standing requires a showing that (1) the litigant has

i,i

suffered or is threatened with direct and concrete injury in a manner or degree

i

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, 86 Ohio St. 3d 451,

469-470, 715 N.E.2d 1062 (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

I

APP-25

v. C.C. Bar’s Sahara, Inc., 64 Ohio St.3d 24, 27, 591 N.E.2d 1203 (1992), the

iI

injury must be “concrete” or “direct” in a way that goes beyond abstract or

speculative harm. Torres v. Cleveland, 8th Dist. Cuyahoga No. 80695,

2002-0hio-4431, U 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,

Ithere is no merit tjo Preterm’s assertion that it could suffer injury by way of

i

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.

j

{^[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

i

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

APP-26

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 ;he 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, 66

Ohio St. 621, 64 N E. 574 (1902), paragraph two of the syllabus.

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, 146 Ohio St. 203, 207, 65 N.E.2d 63

(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

APP-27

and not also the clinic where the abortion services are provided[.]” Ante at 1 25.

By doing so, the majority simply imposes its own interpretation of the statutes

I

above the clear language of the heartbeat provision. And it does so by resorting

to the statement, j [ejvery woman and man in Ohio understands” the reality

behind the heartbeat provision, to evade the issue raised under the heartbeat

I

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

iI

personnel who actually perform or induce abortions, that alignment of interests

does not mean thatjthe 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

I

the corporate entity known as Preterm to criminal punishment — a first

violation of the heartbeat provisions a first-degree misdemeanor and

i

subsequent violations a fourth-degree felony — but apparently its bookkeeper

and janitorial staff, too, because they are “staff’ without whose services a

I

iphysician could notj render abortion services. We should not interpret statutes

ito reach such a result. Mishr v. Poland Bd. of Zoning Appeals, 76 Ohio St.3d

238, 240, 667 N.E.2d 365 (1996).

{f 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

j

the abortion to inform the pregnant woman, to the best of the person’s

APP-28

knowledge, of the statistical probability of bringing the fetus to term based on

i

the gestational age of the fetus. As with R.C. 2919.192(A)(1), this section places

jthe burden on the person intending to perform or induce the abortion. Preterm

ii

cannot actually perform or induce an abortion, so R.C. 2919.192(A)(2) imposes

i

no burden upon it.'

!

{f 44} Preterm also argues that it has suffered a concrete injury because

it is being forced t|o amend its policies and protocols in ways that burden its

i

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

I

suffered by someone other than itself.

{1145} Preterm next claims injury from the 24-hour waiting period

j

required once the person who intends to perform or induce the abortion detects

Ia fetal heartbeat. Ijt 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

I

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

jstanding to challenge HB 59.

APP-29

{^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, 86 Ohio St.3d at 469-470, 715 N.E.2d 1062.

{f47} In Spokeo, Inc. v. Robins, 578 U.S._ _ , 136 S.Ct. 1540, 194L.Ed.2d

635 (2016), the United States Supreme Court held that a “concrete” injury is

one that “must actually exist.” Id. at 1548, 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, 1S<-. Ohio St.3d 13, 2012-0hio-5017, 979 N.E.2d 1214, 1 25,

quoting Mollan v. Torrance, 22 U.S. 537, 539, 6 L.Ed. 154 (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, 70 Ohio St.3d 365, 371, 639

N.E.2d 42 (1994) (arguments concerning what injuries may occur in event of

APP-30

incorporation were “speculative at best and fail to expose a present interest in

ij

the matters at issue”).

{f48} Finally, Preterm maintains that the R.C. 2919.192(A)(2)

I

jrequirement that tjhe person performing or inducing the abortion shall inform

the pregnant wom'an, 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

i

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

I

{149} The duty to inform the pregnant woman of the statistical

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

jor 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

i

based on the presence of a fetal heartbeat was one it voluntarily undertook for

j

the benefit of those persons who would perform or induce an abortion. This was

j

a self-inflicted injury because a party “cannot manufacture standing merely by

i

inflicting harm on themselves based on their fears of hypothetical future harm

i

that is not certainly impending.” Clapper, 133 S.Ct. at 1151, 185 L.Ed.2d 264.

{150} In addjition, it appears that Preterm’s “extensive” research was

i

gratuitous given that the preamble to the Human Heartbeat Protection Act

. i

included the following findings by the General Assembly:

APP-31

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 9j0% 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[.] J

{f 5.1} 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

obbringing 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.

APP-32

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

{f52} 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 “pub ic 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.

{if53} 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.

APP-33

{^f 54} What (Preterm really argues is that its future ability to obtain a

written transfer agreement may be diminished because public hospitals have

I

been barred from entering into written transfer agreements with nontherapeutic

abortion clinics, \yith 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., Styteexrel. Walgate u. Kasich, 2013-Ohio-946, 989 N.E.2d 140

!

(10th Dist.) (finding that plaintiff with gambling addiction lacked private

standing to contest legislation approving casino gambling because plaintiffs

allegation that increased availability of gambling might cause him injury was

speculative and hypothetical).

i

!

{^[55} Preterm offered no evidence to support its assertion that it has

j

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 jtransfer agreement every two years and to file a copy of the

updated agreementj with the Director of Health.” Harrington aff. at t 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

APP-34

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

j

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

statute may actuajly require Preterm to do less, not more.

{156} 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

I

burden on Preterm. Preexisting administrative regulations governed

I

ambulatory surgical facilities and required them to “have a written transfer

agreement with a| hospital for transfer of patients in the event of medical

il

complications, emergency situations, and for other needs as they arise.” Ohio

i

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

i

i

were classified as “health care facilities” for purposes of Ohio Adm.Code 3701-

j

83(I)(1), were required to submit to the director of health a yearly application

to renew the healtl care facility’s license. See Ohio Adm.Code 3701-83-04(B).

Preterm offered no jevidence to show that R.C. 3702.303(B) imposed any burden

in addition to what had previously been required of it by administrative

regulation.

{157} The majority chooses not to address the actual nature of Preterm’s

injury and focuses on its conclusion that Preterm sufficiently alleged a

I“seemingly minimal injury.” While even a minimal injury can support standing,

i

Preterm’s alleged injury comes without any quantification of what costs have

APP-35

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.

{f58} I respectfully dissent.

APP-36

APP-37

APP-38

APP-39

APP-40

APP-41

APP-42

APP-43

APP-44