Case: 1:19-cv-00118-MRB Doc #: 30 Filed: 03/21/19 Page: 1 of 11 PAGEID #: 626

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION CINCINNATI
PLANNED PARENTHOOD
SOUTHWEST OHIO REGION,
PLANNED PARENTHOOD OF
GREATER OHIO, M.D. SHARON
LINER, WOMEN'S MED GROUP
PROFESSIONAL CORPORATION,

Case No.1:19-CV-00118-MRB
Judge Michael R. Barrett

Plaintiffs,
vs.
DAVID YOST, IN THEIR OFFICIAL
CAPACITY AS WELL AS THEIR
EMPLOYEES, AGENTS, AND
SUCCESSORS; MICHAEL O'MALLEY,
IN THEIR OFFICIAL CAPACITY AS
WELL AS THEIR EMPLOYEES,
AGENTS, AND SUCCESSORS;
RONALD O'BRIEN, IN THEIR
OFFICIAL CAPACITY AS WELL AS
THEIR EMPLOYEES, AGENTS, AND
SUCCESSORS; JOSEPH DETERS, IN
THEIR OFFICIAL CAPACITY AS
WELL AS THEIR EMPLOYEES,
AGENTS, AND SUCCESSORS; AND
MATHIAS HECK JR., IN THEIR
OFFICIAL CAPACITY AS WELL AS
THEIR EMPLOYEES, AGENTS, AND
SUCCESSORS,
Defendants.
TEMPORARY RESTRAINING ORDER
This matter is before the Court on Plaintiffs’ February 14, 2019 Motion for a
Preliminary Injunction and/or Temporary Restraining Order and Memorandum of Law in
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Support. (Doc. 4). The Parties completed expedited briefing on March 16, 2019, which
briefing included the declarations and supplemental/rebuttal declarations of numerous
medical professionals. The Parties represented that they wished to submit this matter on
the briefing alone, although Plaintiffs requested oral argument, which the Court held on
March 19, 2019. (Doc. 29). Given the legal and factual complexity of this case, the
Court will not entertain the request for a preliminary injunction without an evidentiary
hearing. However, the Court recognizes that the statute in question will go into effect on
March 22, 2019. Accordingly, the Court will address the Motion (Doc. 4) to the extent
that it requests a temporary restraining order.
I.

BACKGROUND
a. Statute
The Ohio General Assembly recently enacted Ohio Rev. Code § 2919.15

criminalizing, as of March 22, 2019, the performance of an abortion using the dilation
and evacuation (D&E) method on a living fetus. Plaintiffs assert a facial challenge to the
statute, which states that:
[n]o person shall knowingly perform or attempt to perform a
dismemberment abortion when the dismemberment abortion
is not necessary, in reasonable medical judgment, to preserve
the life or physical health of the mother as a result of the
mother’s life or physical health being endangered by a serious
risk of the substantial and irreversible physical impairment of
a major bodily function.

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Ohio Rev. Code § 2919.15(B). The statute offers the following definition of
“dismemberment abortion”:
with the purpose of causing the death of an unborn child, to
dismember a living unborn child and extract the unborn child
one piece at a time from the uterus through use of clamps,
grasping forceps, tongs, scissors, or similar instruments that,
through the convergence of two rigid levers, slice, crush, or
grasp a portion of the unborn child’s body to cut or rip it off.
Ohio Rev. Code § 2919.15(A) (emphasis added).
The Parties agree that the statute describes the D&E abortion method, even though
it uses the term “dismemberment abortion.” (Doc. 4, PageID 49);(Doc. 25, PageID 253).
The Parties also agree that the statute contemplates that a physician may legally perform
a D&E abortion if the physician first causes “fetal demise,” (Doc. 4, PageID 43); (Doc.
25, PageID 253), or if such a procedure is necessary, “in reasonable medical judgment [of
the physician], to preserve the life or physical health of the mother as a result of the
mother’s life or physical health being endangered by a serious risk of the substantial and
irreversible physical impairment of a major bodily function.” Ohio Rev. Code §
2919.15(B). In other words, unless the life or physical health of the mother is seriously
and irreversibly endangered, the physician must first end the life of the fetus before
dismembering and removing it as part of a D&E procedure.
The Parties disagree regarding the constitutionality of the statute. On the one
hand, the State of Ohio represents that legitimate governmental interests justify the
statute’s pre-abortion fetal demise requirement, “as Ohio seeks to promote respect for
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life, protect the medical community, and eliminate the possibility for pain for the unborn
child.” (Doc. 25, PageID 254). On the other hand, Plaintiffs represent that the statute’s
pre-abortion fetal demise requirement creates an undue burden on a woman’s access to an
abortion, particularly for women in the 15-18 week LMP 1 gestational range. (Doc. 4,
PageID 50).
b. Fetal Demise
The Parties submitted briefing and declarations focusing on three fetal demise
methods: (1) digoxin injections; (2) potassium chloride injections; and (3) umbilical
transection. The Parties’ proffered experts, for the most part, take diametrically opposed
positions regarding the safety, efficacy, nature (experimental v. established), and
availability of the three methods, and also disagree on the percentage of women
potentially burdened by the fetal demise requirement. Without an evidentiary hearing,
the Court is not yet in a position to offer findings of fact on the foregoing issues. Nor is
the Court in a position to offer an exhaustive analysis of the Parties’ respective positions
regarding the three fetal demise methods, given the expedited basis on which the request
for temporary restraining order must be decided. However, the Court will highlight some
of the concerns raised by Plaintiffs:

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“LMP” stands for “last missed period.”

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1. Digoxin Injections
According to Plaintiffs, digoxin injections require that the physician use a fourinch spinal needle to pass through the abdomen or cervical wall to inject the drug into the
uterus. (Doc. 4, PageID 50-51) (citing Liner Decl. ¶ 15). Plaintiffs assert that failure to
cause demise occurs in up to 10% of cases, and other complications arise for some
women (e.g., infection, allergic reaction, etc.). (Doc. 4, PageID 51) (citing Keder Decl. ¶
34). With or without medical complications, however, Plaintiffs assert that “the
physician would face an impossible choice” if the first attempt to cause fetal demise via
digoxin injection failed: “(1) commit a felony by completing the procedure (without
demise) for the sake of the patient’s health and safety, (2) put the patient at risk by
performing a second, experimental demise attempt, see id. ¶ 35 (second injection is not
feasible, as no study has established the risks, appropriate dosage, or time to fetal demise
for a second digoxin injection), or (3) let the patient’s health deteriorate so far as to
trigger the [statute’s] extremely narrow health exception.” (Doc. 28, PageID 547).
2. Potassium Chloride Injections
According to Plaintiffs, potassium chloride injections require the skill of a
specialist, as a long needle must be passed through a woman’s abdomen (avoiding
kidneys and other organs) to inject the drug into the fetal heart or thorax. (Doc. 28,
PageID 552-53) (citing Ralston Decl.). During the period in which D&E abortions are
traditionally performed, fetal size is small and the procedure requires extreme precision,
especially to account for patient/fetal movement and potential uterine contractions. (Id.)
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According to Plaintiffs, the nature of potassium chloride renders it dangerous for the
woman if a doctor misses the target. (Id. at 554). Plaintiffs assert that this procedure is
not readily available in abortion clinics, due to its highly specialized nature. (Id. at 553).
3. Umbilical Transection
Plaintiffs explain that umbilical transection requires the physician to rupture the
amniotic membranes; to grasp the fetus’ umbilical cord, which is about the size of a
string in the 15-18 week range; divide the cord; and then wait approximately 10 minutes
for demise. (Doc. 4; PageID 52-53) (citing Keder Decl.). Plaintiffs assert that
transection is not a reliable alternative to the injection-based options because, inter alia,
small fetal size increases the chances that the doctor will accidentally grasp the fetus and
dismember it, thereby unintentionally violating the statute. (Id. at 53).
Again, Defendants offer the declaration of their own medical professional to
dispute many of Plaintiffs’ representations about the above-referenced demise
procedures.
II.

ANALYSIS
"A temporary restraining order is an extraordinary remedy whose purpose is to

preserve the status quo." Kessler v. Hrivnak, No. 3:11-cv-35, 2011 U.S. Dist. LEXIS
57689, at *8-9 (S.D. Ohio May 31, 2011) (quoting Ohio Right to Life Soc'y Inc. v. Ohio
Elections Comm'n, No. 2:08-cv-492, 2010 U.S. Dist. LEXIS 103401, at *14 (S.D. Ohio
Sept. 20, 2010)). In considering a temporary restraining order, the Court balances the
following factors: "(1) whether the movant has a strong likelihood of success on the
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merits; (2) whether the movant would suffer irreparable injury without the injunction; (3)
whether issuance of the injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuance of the injunction." City of
Pontiac Retired Emples. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (per
curiam). “These four considerations are factors to be balanced, not prerequisites that must
be met.” Kessler, 2011 U.S. Dist. LEXIS 57689, *10. "Although no one factor is
controlling, a finding that there is simply no likelihood of success on the merits is usually
fatal." Id.
a. Likelihood of Success
To establish likelihood of success, it “is ordinarily sufficient if the plaintiff has
raised questions going to the merits so serious, substantial, difficult, and doubtful as to
make them a fair ground for litigation and thus for more deliberate investigation." Ne.
Ohio Coal. v. Husted, 696 F.3d 580, 591 (6th Cir. 2012). Given that the Court is
determining likelihood of success on an expedited basis, the Court will not engage in an
exhaustive analysis of the constitutional backdrop of this case. Subject to later
reconsideration, the Court will analyze likelihood of success based on whether a “large
fraction” of women will be unduly burdened by the statute’s fetal demise requirement, as
the Parties generally agree that the “large fraction” standard applies. (Defendants’ Opp.,
Doc. 25, PageID 266) (citing Cincinnati Woman’s Servs. v. Taft, 468 F.3d 361, 367 (6th
Cir. 2006)); (Plaintiffs’ Reply, Doc. 28, PageID 559) (citing Planned Parenthood v.
Casey, 505 U.S. 833, 112 S. Ct. 2791, 2829 (1992)).
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The Parties offer conflicting medical declarations regarding the safety and efficacy
of demise procedures at issue, and dispute the percentage of women affected. However,
the Court concludes that Plaintiffs have raised issues worthy of more deliberate
investigation, which weighs in their favor with respect to likelihood of success.
Furthermore, Plaintiffs have directed this Court to multiple opinions from other courts
that have recently reviewed statutes similar to Ohio Rev. Code § 2919.15. Currently, the
weight of legal authority favors Plaintiffs. See W. Ala. Women’s Ctr. v. Williamson, 900
F.3d 1310 (11th Cir. 2018); Whole Woman’s Health v. Paxton, 280 F. Supp. 3d 938
(W.D. Tex. 2017). That said, the Court is mindful of Defendants’ arguments questioning
whether the foregoing courts applied the correct legal standard. At this point, the Court
neither accepts nor rejects the analyses of Williamson and Paxton, which the Court will
study in depth at the preliminary injunction phase. At this early stage, however, Plaintiffs
have offered sufficient facts and legal authority to carry their burden on the first factor.
b. Irreparable Harm/Harm to Others
The Court will consider the second and third factors together. Plaintiffs argue that
“a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if
the claim is based upon a violation of the plaintiff’s constitutional rights.” Overstreet v.
Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). Accord: Elrod
v. Burns, 427 U.S. 347, 373 (1976) (“The loss of [constitutional] freedoms …
unquestionably constitutes irreparable injury.”). Here, the Court is not persuaded that
Plaintiffs’ constitutional rights will be violated, because physicians do not possess a
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constitutional right to perform abortions. Planned Parenthood of Greater Ohio v.
Hodges, No. 16-4027, 2019 U.S. App. LEXIS 7200, at *8 (6th Cir. Mar. 12, 2019) (en
banc). However, physicians generally have standing to assert constitutional challenges
on behalf of their patients in the abortion context. Id. at *12. Thus, if Plaintiffs establish
that the fetal demise requirement creates an undue burden to a “large fraction” of women
seeking an abortion in the 15-18 week range, then the second and third factors weigh in
favor of Plaintiffs.
c. Public Interest
“The public interest is promoted by the robust enforcement of constitutional
rights,” Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698
F.3d 885, 896 (6th Cir. 2012), and it is in the public’s interest to uphold those rights if
they are being denied “absent medical or other legitimate concerns.” Doe v. Barron, 92 F.
Supp. 2d 694, 697 (S.D. Ohio 1999). Given the factual and legal complexity of this case,
the Court is satisfied that the public interest will be served by a narrowly tailored
temporary restraining order, so that the Court may preserve the status quo while
conducting the appropriate constitutional and factual inquiries.
III.

BOND

The Court waives the bond requirement of Rule 65(c) of the Federal Rules of Civil
Procedure. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995)
(district court has discretion to issue preliminary injunction with no bond); Roth v. Bank
of the Commonwealth, 583 F.2d 527, 539 (6th Cir. 1978) (same).
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IV.

CONCLUSION
For the foregoing reasons, the Court declines at this juncture to declare Ohio Rev.

Code § 2919.15 unconstitutional; however, Plaintiffs have raised factual and legal issues
that warrant further investigation. Accordingly, the Motion (Doc. 4) is GRANTED IN
PART, to the extent that it seeks a temporary restraining order; the portion of the Motion
(Doc. 4) seeking a preliminary injunction is HELD IN ABEYANCE.
However, the Court declines to enjoin Defendants from enforcing Ohio Rev. Code
§ 2919.15 in its entirety. Perhaps anticipating that the Court would require a more fully
developed record before issuing wholesale relief, each side has essentially asked this
Court, in the alternative, to enter a partial injunction. (Defendants’ Opp., Doc. 25,
PageID 258) (inviting Court to “craft a remedy”); (Plaintiffs’ Reply, Doc. 28, PageID
560) (including alternative request for partial injunction if the Court disinclined to grant
wholesale relief to Plaintiffs). Therefore, the Court ORDERS as follows: Defendants
David Yost, Michael O’Malley, Ronald O’Brien, Joseph Deters, and Mathias Heck, in
their respective official capacities, as well as their employees, agents, and successors, and
all those acting in active concert with them, are TEMPORARILY ENJOINED from
prosecuting or otherwise pursuing legal action against medical professionals based on
Ohio Rev. Code § 2919.15, in the following circumstances:
1. Where a physician performs D&E procedure before 18 weeks
LMP;

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2. Where, during the course of a D&E procedure, a physician
accidentally removes fetal parts when intending to comply with
demise requirements;
3. Where a physician performs a D&E procedure after an attempted
demise procedure fails;
4. Where a physician performs a D&E procedure without demise
after making a medical determination that a given patient is not a
candidate for a demise procedure, either because a procedure is
contraindicated or medically impossible for that patient.
Based on the text of the statute, it is the Court’s understanding that a physician
may perform a D&E procedure if such a procedure is necessary, “in reasonable medical
judgment [of the physician], to preserve the life or physical health of the mother as a
result of the mother’s life or physical health being endangered by a serious risk of the
substantial and irreversible physical impairment of a major bodily function,” Ohio Rev.
Code § 2919.15; thus, these circumstances are already covered by the statute and need
not be included in the above temporary restraining order. Indeed, no party requested that
such language be included in the temporary restraining order.
This Order is effective upon entry, and expires in fourteen (14) days unless
dissolved earlier or extended by the Court. Consistent with the above, there is no
requirement of a bond.
IT IS SO ORDERED.

s/Michael R. Barrett
___________________________
Hon. Michael R. Barrett
United States District Judge

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