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Planned Parenthood calls on courts to reject motions to dismiss in two separate Ohio lawsuits

Planned Parenthood asked a federal judge to reject the state's motion to dismiss the organization's lawsuit seeking an order barring the state from enforcing a vague statute regarding fetal tissue, the Dayton Daily News reports (Callahan, Dayton Daily News, 4/15).

Background

In December 2015, Ohio Attorney General Mike DeWine (R) said an investigation of Planned Parenthood following the release of misleading videos targeting the organization's fetal tissue donation program did not find evidence that Planned Parenthood in Ohio had profited from the sale of fetal tissue. According to officials with Planned Parenthood in Ohio, the state affiliate does not donate fetal tissue.

However, DeWine said the investigation found that the organization improperly disposed of fetal tissue. The Ohio Administrative Code holds that "a fetus shall be disposed of in a humane manner," but it does not specify what is considered "humane," nor does it outline penalties for violating the code. DeWine said he would seek an injunction to block Planned Parenthood from disposing of fetal tissue in the manner identified in the investigation.

Planned Parenthood filed a lawsuit against the state over the allegations. In the lawsuit, Planned Parenthood contends that the state violated the organization's due process and equal protection rights by modifying the interpretation of the state's rules on disposing of fetal tissue without notice and then targeting Planned Parenthood unfairly. Lawyers for the organization said Richard Hodges, the state's director of health, did not act according to standard procedure, which usually entails providing notice of any alleged violations and allotting time to make corrections. According to the lawsuit, Planned Parenthood did not learn of the alleged violations until after it contacted state officials.

U.S. District Judge Edmund Sargus issued a temporary restraining order that prevents the state from taking any legal action against Planned Parenthood until Jan. 11. DeWine later said the state would not enforce the vaguely worded statute and would instead work with state lawmakers to clarify the language (Women's Health Policy Report, 12/22/15). Last week, the Ohio House Health Committee advanced two bills (HB 417, HB 419) that would impose fetal tissue disposal requirements under the statute (Women's Health Policy Report, 4/15).

DeWine's office filed a motion to dismiss Planned Parenthood's lawsuit, stating the case is moot because it has said it will not enforce the law. DeWine's office said, "ODH and the Ohio Attorney General's Office have stated, stipulated, and notified the court in writing that they will not enforce that administrative rule as it is currently written. They will not enforce it against plaintiffs, or anyone else, now or at any time in the future" (Dayton Daily News, 4/15).

Latest developments

Jennifer Branch, an attorney for Planned Parenthood, urged the court to deny the state's motion to dismiss the case, the Daily News reports.

Branch wrote, "There is currently no enforceable settlement agreement or court order preventing [the] defendant from changing course and attempting to enforce the regulation, since the regulation remains on the books." She noted, "Since [the] defendant has previously reneged on a finding of compliance the plaintiffs are entitled to more than another promise to prevent [the] defendant from returning 'to its old ways.' There is no reason in this case to blindly trust defendant's assertion that he does not intend to enforce the regulation."

Transfer agreement case

In related news, Planned Parenthood also asked a federal judge to deny a motion to dismiss the University of Cincinnati Medical Center and UC Health from a lawsuit challenging an Ohio antiabortion-rights patient transfer agreement regulation (Dayton Daily News, 4/15).

Background

Ohio's 2014-2015 budget (HB 59) required abortion clinics in the state to have a patient transfer agreement with a hospital. Public hospitals are prohibited from entering such agreements with abortion clinics.

Gov. John Kasich (R) last year signed a state budget (HB 64) that required abortion clinics to arrange a patient transfer agreement with a hospital no more than 30 miles away or request a variance from the requirement. The law also requires the state health director to grant or deny a clinic's variance request within 60 days. Clinics unable to obtain a variance within 60 days are required to close, although they are permitted to reopen if they obtain approval at a later time. If the clinic's variance request is denied, its operating license is automatically suspended.

In September 2015, the Ohio Department of Health (ODH) denied variance requests from the Planned Parenthood of Southwest Ohio clinic in Cincinnati and the Women's Med Center of Dayton, which are the only remaining clinics in southwest Ohio. Later that month, U.S. District Judge Michael Barrett ruled that the clinics could remain open while they appeal the license revocation decision.

The clinics made arrangements with a fourth physician and filed another variance request. The operators of the two clinics also filed a lawsuit in federal court challenging the constitutionality of the requirements. In October 2015, Barrett issued a preliminary injunction prohibiting enforcement of the law while the federal lawsuit moves forward.

In November 2015, Hodges granted the Planned Parenthood clinic in Cincinnati a variance that permits the clinic to remain open until May 31 (Women's Health Policy Report, 11/30/15). According to Branch, Hodges denied the variance request for the other Planned Parenthood clinic. Branch said a revocation hearing is scheduled for April 26.

In November 2015, UC Health and the University of Cincinnati Medical Center filed a motion to be dismissed from the lawsuit because they were complying with state law when they denied the clinics' requests for transfer agreements.

Planned Parenthood urges against dismissals

Planned Parenthood contends that UC Health and the University of Cincinnati Medical Center should not be dismissed because their decisions to deny the transfer agreement put the clinics at risk of losing their licenses and subsequently closing. According to Planned Parenthood, those decisions make the two entities directly involved with the transfer agreement lawsuit (Dayton Daily News, 4/15).