Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 1 of 43 PAGEID #: 887

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.
PRELIMINARY INJUNCTION
On February 14, 2019, Plaintiffs Planned Parenthood Southwest Ohio Region
(“PPSWO”), Planned Parenthood of Greater Ohio (“PPGHO”), Sharon Liner, M.D., and
Women’s Med Group Professional Corporation (collectively, “Plaintiffs”) filed a Complaint
(Doc. 1) challenging an Ohio statute that places restrictions on the most common abortion

1

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 2 of 43 PAGEID #: 888

method used in Ohio for pre-viability, second trimester abortions. With their Complaint,
Plaintiffs filed a Motion for a Preliminary Injunction and/or Temporary Restraining Order. (Doc.
4). To preserve the status quo so that the Court could perform the appropriate constitutional and
factual inquiries, the Court partially granted the Motion to the extent that it sought temporary
relief, and held the portion of the Motion seeking a preliminary injunction in abeyance pending
an evidentiary hearing. From April 10 to April 12, 2019, the Court heard the testimony of six
medical professionals. The Court will now address Plaintiffs’ Motion to the extent that it seeks a
preliminary injunction.
I.

BACKGROUND
a. The Act

Ohio Senate Bill 145 (S.B. 145 or the Act), 132nd General Assembly (Ohio 2018)
(codified at Ohio Rev. Code § 2919.15) was signed into law on December 21, 2018. The Act
criminalizes, as of March 22, 2019, the performance of “dismemberment abortions.” It 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.

Ohio Rev. Code § 2919.15(B). Violation of the Act constitutes a fourth-degree felony,
punishable by six to eighteen months in prison, and a fine of up to $5,000. Ohio Rev. Code §§
2919.14(A)(4), 2919.15(C), 2919.18(A)(3)(d). It also subjects physicians to civil liability. Id. §
2307.53(A).
2

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 3 of 43 PAGEID #: 889

The Act supplies 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). 1 “Dismemberment abortion” is not a medical
term used by physicians (Keder Direct), but the Parties agree that the term refers to the dilation
and evacuation (D&E) abortion procedure. (Doc. 4, PageID 49);(Doc. 25, PageID 253). The
Parties also agree that Ohio Rev. Code § 2919.15 contemplates that a physician may legally
perform a D&E procedure if the fetus already died in utero; if the physician first causes “fetal
demise” (i.e., death by injection or umbilical transection) (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).
B. Fetal Demise
Plaintiffs argue that, by tacitly creating a fetal demise requirement before D&E
may be lawfully performed, the State has essentially banned the most common, available, and
safe pre-viability second trimester abortion without a feasible alternative or sufficiently broad
medical exception. Although a doctor may legally perform a D&E if he or she first effects “fetal
demise” – which can in theory be caused via (1) digoxin injection; (2) potassium chloride
injection; and/or (3) umbilical transection – Plaintiffs argue that the fetal demise requirement

1

The Act “does not prohibit the suction curettage procedure of abortion or the suction aspiration
procedure of abortion.” Id. (codified at Ohio Rev. Code § 2919.15(E)).

3

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 4 of 43 PAGEID #: 890

places doctors in such an impossible situation that many will abandon the practice of performing
otherwise legal, pre-viability second trimester abortions altogether. As will be further described
in the factual findings contained in Section II infra, Plaintiffs specifically argue that a doctor’s
inability to effect fetal demise (i.e., a failed attempt to cause death by injection or transection)
could place the patient in territory that is hazardous long term, yet insufficiently dire in the short
term to trigger the statute’s narrow medical exception. Likewise, Plaintiffs argue that the doctor
is also placed in criminally dangerous territory, as accidental dismemberment of a living fetus is
an inherent risk in at least one fetal demise method proposed by the State. Plaintiffs further
argue that, even though the State contends that it would not prosecute accidental dismemberment
of a living fetus, nothing prevents the State from taking the contradictory position in the future
that even knowing the risk of accidental dismemberment satisfies the Act’s scienter requirement.
Unlike previously enacted partial birth abortion bans, which left other safe, pre-viability second
trimester options available, Plaintiffs contend that Ohio doctors performing abortions in the 1522 week LMP 2 range have no feasible backup option to avoid health risks to patients and legal
risks to doctors.
C. Procedural Posture
Plaintiffs take the position that the criminalization of D&E absent pre-abortion
fetal demise creates an undue burden on women in Ohio seeking otherwise legal second trimester
abortions. In advance of the statute’s effective date, Plaintiffs filed on February 14, 2019 a
lawsuit asking that this Court declare Ohio Rev. Code § 2919.15 unconstitutional, and to issue an

2

“LMP” stands for “last menstrual period.” According to Plaintiffs and as further discussed below, D&E performed
in the 15-18 week LMP range are more severely affected by the Act than the remainder because the medical
research on digoxin in particular is silent with respect to its use before 19 weeks. (Doc. 4, PageID 50). In all cases,
the medical research is also silent on whether it is safe to administer a second dose of digoxin if the first attempt to
cause fetal demise fails.

4

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 5 of 43 PAGEID #: 891

order preliminarily and permanently enjoining its enforcement. (Doc. 1, PageID 14). Plaintiffs’
Complaint was accompanied by their Motion for a Preliminary Injunction and/or Temporary
Restraining Order. (Doc. 4).
After expedited briefing which was supported by numerous declarations and
supplemental/rebuttal declarations, the Court partially enjoined enforcement of the statute on a
temporary basis, and held the remainder of the Motion in abeyance pending an evidentiary
hearing. Specifically, the Court temporarily enjoined Defendants, as well as their employees,
agents, and successors, and all those acting in active concert with them, 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;
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.
(Doc. 30; 34). The above-referenced temporary restraining (“TRO”) order expires on April 18,
2019 (i.e., today). The Court expressed in the TRO that, before entertaining the motion for
preliminary injunction, the Court would require an evidentiary hearing. Accordingly, the Court
heard evidence from April 10 through April 12, 2019. The following witnesses testified on
behalf of Plaintiffs: Dr. Lisa Keder, Dr. Steven Ralston, Dr. Sharon Liner, Dr. Katharine Rivlin,
and Dr. Martin Haskell. Dr. Michael Valley testified on behalf of the State.

5

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 6 of 43 PAGEID #: 892

Before the preliminary injunction hearing, no party asked to consolidate the
hearing with the trial on the merits. Therefore, based on the declarations and testimony, the
Court makes preliminary findings of fact as set forth in Section II below.
II.

FINDINGS OF FACT
a. Parties

Plaintiffs named the Ohio Attorney General, and multiple county prosecutors, as
Defendants in this action. Collectively, Defendants are referred to as “the State.”
Plaintiffs are abortion providers in Ohio:
1. PPSWO
PPSWO is an Ohio non-profit corporation. It offers surgical abortions, including
D&E abortions, at its Cincinnati facility through 21 weeks 6 days LMP. (JX 30, ¶ 3).
2.

Sharon Liner, M.D.

Dr. Liner is a physician licensed to practice medicine in Ohio. Dr. Liner serves as
the Medical Director of PPSWO and provides abortions at its Cincinnati facility through 21
weeks 6 days LMP. (Id.)
3. PPGOH
PPGHO is an Ohio non-profit corporation. PPGOH offers surgical abortions,
including D&E abortions at two Ohio clinics. At its Columbus facility, PPGOH offers D&E
through 19 weeks 6 days LMP. At its Bedford Heights facility near Cleveland, PPGOH offers
D&E through 18 weeks 6 days LMP. (JX 29, ¶ 10).

6

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 7 of 43 PAGEID #: 893

4. Women’s Med Group Professional Corporation
Plaintiff Women’s Med Group Professional Corporation owns and operates the
Women’s Med Center of Dayton (Women’s Med), which provides surgical abortions, including
D&E, through 21 weeks 6 days LMP or to 450 grams estimated fetal weight. (JX 31, ¶¶ 1, 11).
b. Witnesses
1. Dr. Lisa Keder
Lisa Keder, M.D., is a board-certified obstetrician-gynecologist (OB/GYN)
practicing in the state of Ohio. She is a professor and Vice Chair of the Ohio State University
Wexner Medical Center’s Department of OB/GYN and Division Director for General OB/GYN.
In addition to overseeing gynecologic services and general obstetrics services, Dr. Keder
provides full-scope OB/GYN care to patients. Dr. Keder teaches medical students and residents
based on the national OB/GYN curriculum. Dr. Keder is a contract physician at PPGOH, where
she provides patient care, including abortions. She previously served as the Director of Planned
Parenthood of Central Ohio (now merged into PPGOH). Dr. Keder has provided thousands of
abortions in Ohio throughout her career, including D&Es. She has published multiple peer
reviewed articles on contraception and family planning. Dr. Keder received a medical degree
from the Ohio State University College of Medicine and completed a four-year OB/GYN
residency and a two-year fellowship in Family Planning and Contraception at the University of
Pittsburgh. She also has a Master’s in Public Health (MPH) from the University of Pittsburgh.
Plaintiffs offered Dr. Keder as an expert qualified in OB/GYN, including the
provision of abortion care and second-trimester abortions in Ohio, as well as OB/GYN resident
training and the training required to provide abortion care in Ohio. (Keder Direct; JX-23 (Keder
CV)).

7

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 8 of 43 PAGEID #: 894

2. Dr. Steven Ralston
Steven J. Ralston, M.D., M.P.H., is a board-certified OB/GYN and board-certified
maternal-fetal medicine (MFM) specialist. Dr. Ralston is the Chair of OB/GYN at Pennsylvania
Hospital in Philadelphia, Pennsylvania. He is also a Clinical Professor of OB/GYN at the
University of Pennsylvania. Dr. Ralston provides direct care to patients as an MFM specialist
and supervises MFM fellows, OB/GYN residents, and medical students. As an MFM specialist,
Dr. Ralston is skilled in ultrasound and intrauterine needle-based procedures, including
injections of potassium chloride (KCl), in which he trains MFM fellows. Dr. Ralston received his
medical degree from Columbia University, completed an OB/GYN residency at Yale University,
and completed his MFM fellowship at Tufts University. Dr. Ralston also received a MPH from
Boston University. He has served on the Committee on Ethics for the American College of
Obstetricians and Gynecologists (ACOG), the Committee on Bioethics of the American
Academy of Pediatrics, and the Ethics Committee of the American Society of Reproductive
Medicine.
Dr. Ralston has authored dozens of peer-reviewed clinical research articles and
ethics opinions that set national standards of practice. Dr. Ralston provides full-scope OB/GYN
care to patients, including D&Es and other abortions. Plaintiffs offered Dr. Ralston as an expert
qualified on fetal development, specifically on fetal pain, as well as maternal fetal medicine,
advanced intrauterine needle-based procedures including fetal KCl injection, and the training
required to perform such injections. (Ralston Direct; JX-28 (Ralston CV)).
3. Dr. Sharon Liner
Sharon Liner, M.D., is a family physician licensed to practice medicine in Ohio.
For the last 12 years, Dr. Liner has served as Director of Surgical Services of PPSWO in
8

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 9 of 43 PAGEID #: 895

Cincinnati, as well as Medical Director since October 2018. In her roles, Dr. Liner supervises
physicians and residents, assists in developing and implementing PPSWO policies and
procedures, and provides direct care services to women, including D&E procedures and other
abortions. Dr. Liner has been working as a physician at PPSWO since 2004. She earned her
medical degree from Michigan State University and completed Family Medicine residency at the
University of Cincinnati. (Liner Direct; JX-30 ¶¶ 1-3 (Liner Decl.)).
Dr. Liner is also a Plaintiff in this action.
4. Dr. Katharine Rivlin
Katherine Rivlin, M.D., is a board-certified OB/GYN licensed to practice in the
state of Ohio. Dr. Rivlin practices and serves on the faculty of the Ohio State University Wexner
Medical Center, and she works as a staff physician at PPGOH. Dr. Rivlin provides prenatal care,
comprehensive gynecological care, and gynecological surgery. She also conducts clinical
research in abortion and contraception. Dr. Rivlin earned her medical degree from the University
of Mississippi and completed an OB/GYN residency at New York University Medical Center.
She completed a fellowship in Family Planning at Columbia University Medical Center, during
which time she also completed a MPH in epidemiology. Dr. Rivlin provides medication and
surgical abortions in Ohio, including D&E. (Rivlin Direct; JX-29 ¶¶ 1-2 (Rivlin Decl.)).
5. Dr. W.M. Martin Haskell
W.M. Martin Haskell, M.D., is a licensed family physician in the state of Ohio.
He is the sole shareholder of WMGPC, which owns and operates Women’s Med Center of
Dayton (WMCD). Dr. Haskell is the Medical Director of WMCD, where he supervises
physicians and clinicians and provides direct reproductive healthcare to patients. Dr. Haskell has
trained physicians in abortion care. He received a medical degree from the University of
9

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 10 of 43 PAGEID #: 896

Alabama and completed an anesthesia internship at the University Hospital in Alabama. Dr.
Haskell received 18 months of residency training in general surgery and two years of family
practice residency training at the University of Cincinnati. Dr. Haskell has provided thousands of
abortions since 1978, including D&E procedures, until his recent retirement. (Haskell Direct; JX31 ¶¶ 1, 3-5 (Haskell Decl.)).

6. Dr. Michael Valley (State’s Witness)
Michael Valley, M.D. currently practices obstetrics and gynecology and
urogynecology in a private practice in Minnesota, where he is licensed to practice medicine. He
completed a residency in obstetrics and gynecology. Dr. Valley performs D&Es but limits this
practice to demised fetuses. (JX 24, ¶ 1; Valley Direct).
Dr. Valley estimates that he has performed five to ten D&E procedures over the
course of his career, all of which were performed on patients who had already miscarried before
he began the procedure. (Valley Cross). The most recent D&E procedure that Dr. Valley
performed was at least five years ago. (Valley Cross). Dr. Valley has never used digoxin
injections, KCl injections, or umbilical cord transections (UCT) to attempt fetal demise prior to
performing an abortion. (Valley Cross). Dr. Valley does not hold himself out as an expert on
fetal development, fetal neurology, or D&E abortion procedures.

c. Abortion in Ohio
Considering the fact that abortion “procedures seek to terminate a potential
human life, [this] discussion may seem clinically cold or callous to some, perhaps horrifying to
others.” Stenberg v. Carhart, 530 U.S. 914, 923, 120 S. Ct. 2597, 2605 (2000). As the Supreme
Court has observed, however, “[t]here is no alternative way . . . to acquaint the reader with the
10

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 11 of 43 PAGEID #: 897

technical distinctions among different abortion methods and related factual matters, upon which
the outcome of this case depends.” Id. For that reason, drawing upon the testimony and related
medical texts, this Court shall describe the relevant methods of performing abortions in technical
detail.
1. First Trimester
Most Ohio women who undergo abortions do so during the first trimester of
pregnancy, which lasts until 13 weeks LMP. (JX 36). The testimony establishes that legal
abortion is a common and safe medical procedure; that it is generally safer for a woman than
carrying a pregnancy to term; and that the complication rate for abortion is low. (Keder Direct;
Ralston Cross).
First-trimester abortions do not involve the dismemberment of a living fetus. In
the first trimester, clinicians can induce abortions through medication, or alternatively, can
suction the uterus to remove the fetus all at once and without the need for piece-by-piece
removal. (JX 22, ¶ 18). In the first trimester of pregnancy, abortions in Ohio are performed
using either medical or surgical means. (Keder Direct; Liner Direct; Rivlin Direct; Haskell
Direct). Medication abortion, which is accomplished through the ingestion of medications in the
form of pills, is available up to 10 weeks LMP in Ohio. (Keder Direct; Liner Direct; Haskell
Direct). Surgical abortion in the first trimester is performed by using suction aspiration to empty
the uterus. (Keder Direct; Liner Direct; Haskell Direct).
2. Second Trimester
Starting at approximately 15 weeks LMP, suction alone is no longer sufficient to
evacuate the uterus. (Keder Direct; Liner Direct). Therefore, beginning around 15 weeks LMP,
physicians routinely use a combination of suction and surgical instruments to remove the fetus
11

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 12 of 43 PAGEID #: 898

and other products of conception from the uterus. (Keder Direct; Liner Direct; Rivlin Direct;
Haskell Direct). This procedure is commonly referred to as a D&E. (Keder Direct; Liner Direct;
Rivlin Direct; Haskell Direct).
3. D&E
D&E is the only outpatient abortion procedure available to women in Ohio
beginning at approximately 15 weeks LMP. (Keder Direct; Liner Direct; Haskell Direct; Rivlin
Direct). D&E has two steps: (1) dilation of the cervix and (2) piece by piece removal of the
fetus, placenta and uterine lining with surgical instruments and suction. (JX 22, ¶¶ 20-21). Dr.
Keder explained that, during the first step, clinicians place laminaria into the patient’s cervix,
which slowly absorb water and dilate the cervix over a period of about 24 hours. Because the
cervical opening is smaller than the fetus, and the cervix is dilated only enough to be able to
safely complete the procedure, separation or disarticulation of the fetal tissue usually occurs as
the physician uses instruments to bring the tissue through the cervix. (Keder Cross). In the
second step, Dr. Keder testified that clinicians may further dilate the cervix before removing the
fetus with a combination of surgical instruments and suction. Specifically, the physician uses
forceps or other surgical instruments in conjunction with suction to remove the fetus and other
contents of the uterus. (Keder Direct; Liner Direct; Rivlin Direct; Haskell Direct). During her
testimony, Dr. Keder admitted that a fetus is not removed intact during a D&E. She testified that
clinicians often detach limbs and other fetal parts while completing a D&E procedure. (Keder
Cross). The evacuation process typically takes about 10 minutes. (Keder Direct; Haskell Cross).
Dr. Keder testified that the D&E steps occur over two visits to an abortion clinic.
(Keder Direct). Dr. Keder agreed in her testimony that D&Es involve risks of infection,
hemorrhage, cervical laceration, uterine perforation, and other complications. She believed that

12

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 13 of 43 PAGEID #: 899

the rate of these complications, which she estimated at less than one percent for each
complication, was acceptable to continue performing the procedure. (Keder Cross). By way of
contrast, Dr. Keder testified that a cesarean section has a 1 to 2 percent risk of infection but
cesarean sections are an acceptable medical procedure. (Keder Direct).
Based on the record before the Court, D&E procedures are considered safe.
(Keder Direct; Rivlin Direct; Ralston Cross). Major complications occur in fewer than 1% of
second-trimester abortions performed by D&E. (Keder Direct). Furthermore, while abortion is
generally a safe procedure for the woman, rates of complications increase with gestational age.
From 1998-2010, the mortality rate for abortions at or less than 8 weeks LMP was 0.3 for every
100,000 abortions and 0.5 for abortions between 9-13 weeks LMP. This rate increased to a rate
of 2.5 for abortions between 14-17 weeks LMP and increased to a rate of 6.7 for abortions at or
after 18 weeks LMP. JX 1, Table 2. The rate increases to 10.4 per 100,000 procedures for
abortions at or after 21 weeks LMP, which is higher than the 8.8 mortality rate for pregnancies.
(Compare JX 8 at 1063 with JX 1 at 5).
The D&E procedure is distinct from a dilation and extraction (D&X) procedure,
also known as “intact D&E,” which involves dilating the cervix sufficiently to remove the fetus
intact to a defined anatomical landmark. The D&X procedure is banned under the Federal
Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531; see Gonzales v. Carhart, 550 U.S.
124, 168 (2007), and by separate provisions of the Ohio Revised Code § 2919.151. Prior to S.B.
145, those laws did not prohibit the D&E procedure at issue in this case. See Gonzales, 550 U.S.
at 135; Ohio Rev. Code §2919.15(A)(1); Women’s Med. Prof’l Corp. v. Taft, 353 F.3d 436 (6th
Cir. 2003).

13

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 14 of 43 PAGEID #: 900

4. Alternatives to D&E
Other than D&E, the only abortion methods available after 15 weeks LMP are
induction abortion and hysterotomy; the latter is similar to a Caesarian-section procedure. (Keder
Direct; Rivlin Direct). Both procedures are rare and available only in a hospital setting. (Keder
Direct; Rivlin Direct). Furthermore, induction abortions are much riskier than D&E procedures.
(Keder Direct). They require a woman to go through labor and delivery, and thus must be
performed in an inpatient setting. (Keder Direct; Liner Direct; Valley Cross). They take at least
eight hours and may take up to several days to complete. (Keder Direct). Up to 33% of women
who undergo induction abortions have a retained placenta and require surgery. (JX-22 ¶ 25
(Keder Decl.)). Other risks include infection (Valley Cross), cervical bleeding, failure to fully
pass the pregnancy, and hemorrhage (Keder Direct). Because they are performed in hospital
settings, induction procedures are far more expensive than clinic-based D&E abortions. (Keder
Direct). They are also generally not available in Ohio, as very few hospitals in Ohio perform
abortions, and even then, in only very limited medical situations. (Keder Direct; Haskell Direct;
Rivlin Direct).
5. Fetal Demise
D&E need not necessarily be performed by dismembering a living fetus. Some
doctors choose to kill the fetus, using digoxin, before performing the surgical dismemberment
and evacuation. Gonzales, 550 U.S. at 136. Nationally, however, most doctors do not currently
attempt to induce fetal demise prior to a D&E. (Keder Direct). According to a recent study of
second-trimester abortion in the U.S., 74% of clinicians who provide D&Es after 18 weeks LMP
do not cause demise before the procedure. (Keder Direct; Valley Cross; JX-37 at 4 (White et al.,
Second-Trimester Surgical Abortion Practices in the United States (White Study))). Of the
14

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 15 of 43 PAGEID #: 901

providers who did routinely induce demise, 70% began at 20 weeks’ gestation or greater. (JX-37
at 4 (White Study)). 3 Some doctors have claimed anecdotally that administration of digoxin
makes D&E easier to perform, as demise softens the fetal tissue, but some scientific literature
disputes such claims. (JX-3 at 4 (Jackson et al., Digoxin to Facilitate Law Second-Trimester
Abortion: A Randomized, Masked, Placebo-Controlled Trial (Jackson Study)); JX-9 at 4-5
(Gariepy et al., Transvaginal Administration of Intraamniotic Digoxin Prior to Dilation and
Evacuation (Gariepy Study))).
Notwithstanding the varying practices in the medical community regarding preD&E fetal demise, the State asserts that all physicians can avoid criminal liability under S.B. 145
by inducing fetal demise before carrying out the evacuation part of the D&E procedure,
proposing three means of doing so: injection of digoxin, injection of potassium chloride (KCl),
or umbilical cord transection (UCT). (Doc. 25, PageID 255); (Valley Direct).
a.

Digoxin

Digoxin is a medication that causes the fetal heart to stop beating. (Valley Direct;
Keder Direct). Beginning at 18 or 20 weeks LMP, some, but not all, physicians attempt to induce

3

The evidence suggests that, of the doctors who performed fetal demise prior to enactment of Ohio
Rev. Code §2919.15, they likely started doing so to avoid violating the partial birth abortion ban.
Specifically, following the enactment of the partial birth abortion (D&X) bans, some doctors who
provided D&E procedures began attempting demise starting at later gestations (18 or 20 weeks LMP)
to avoid accidentally violating the bans while attempting to perform a D&E. (Keder Direct; Haskell
Direct; Rivlin Direct; Liner Direct). This is less of a concern today, because many doctors have
found they can reliably avoid violating those bans without performing demise. Thus, some doctors
have trended away from digoxin use. (Keder Direct).
Additionally, advancements in medical research have uncovered additional concerns about the risks
digoxin presents to patients. (Keder Direct). Consistent with these developments, current Planned
Parenthood Federation of America (PPFA) guidelines permit, but do not mandate, digoxin use after
18 weeks LMP. (Liner Redirect).

15

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 16 of 43 PAGEID #: 902

demise by injecting digoxin either into the fetus (intrafetal) or into the amniotic fluid
(intraamniotic). (Keder Direct; Liner Direct; Haskell Direct). Digoxin procedures can be
technically challenging for the physician. (Keder Direct; Liner Direct). Although intrafetal
injections have higher effectiveness rates than intraamniotic injections, intrafetal injections are
more challenging. (Keder Direct).
Physicians at PPGOH never use digoxin to attempt fetal demise before
completing a D&E procedure, and physicians at PPSWO and WMCD use digoxin to attempt
fetal demise beginning at 18 weeks, and in some cases beginning at 20 weeks. (Keder Direct;
Rivlin Direct; Haskell Direct; Liner Direct).
Physicians who administer digoxin do so by using a 3.5-inch spinal needle to
inject the drug transabdominally (through the woman’s abdomen into the uterus) or
transvaginally (through the woman’s vaginal wall or the cervix into the uterus). (Keder Direct;
Liner Direct; Haskell Direct). When it works, digoxin can take up to 24 hours to be effective.
(Valley Direct; Keder Direct; Liner Direct). Therefore, physicians who attempt to cause demise
with digoxin generally do so the day before the scheduled D&E procedure. (Keder Direct; Liner
Direct; Haskell Direct). 4
In response to questioning from the Court, the Parties’ witnesses agreed that
digoxin creates risks of infection and extramural delivery (i.e., delivery of a non-viable fetus
outside a health care facility). (Keder Court Examination; Valley Court Examination; See JX-14
at 3 (Tocce et al., Umbilical Cord Transection to Induce Fetal Demise Prior to Second-Trimester

4

The State proposes that digoxin could be administered the same day as the cervix is dilated.
Therefore, digoxin administration would not necessarily increase the number of patient visits, a
point that Plaintiffs do not appear to dispute.
16

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 17 of 43 PAGEID #: 903

D&E Abortion (Tocce Study II) (“[W]omen who received digoxin experienced higher rates of
infection[.]”). 5 Extramural delivery is a result of the fact that digoxin causes demise, which
accelerates delivery. (Haskell Cross). Digoxin has also been shown to increase risks of digoxin
toxicity, cardiac distress, rupture of membranes, damage to maternal vessels, and bleeding.
(Keder Direct). When attempting digoxin, a doctor can accidentally hit an artery and cause
bleeding, or puncture the small intestine introducing infection into the uterus. (Haskell Direct).
One large, retrospective study of digoxin use found a 1.9% extramural delivery
rate for women who received digoxin prior to an abortion, as compared to a 0% rate for those
who did not. (JX-6 at 5 (Tocce et al., Feasibility, Effectiveness and Safety of Transvaginal
Digoxin Administration Prior to Dilation and Evacuation)). Dr. Haskell testified that between 25
and 100 patients have experienced extramural deliveries or threatened extramural deliveries
since WMCD began using digoxin. (Haskell Cross).
Extramural deliveries create risks of hemorrhage; they can also be stressful and
even emotionally and physically traumatic to patients. (Haskell Direct; Rivlin Direct). Clinics
that use digoxin beginning at 18 weeks LMP typically have a rotating call system with
physicians and other staff available overnight so a patient can receive an emergency D&E at the
outpatient facility if she shows signs of extramural delivery. (Rivlin Direct; Liner Direct; Haskell
Direct). However, such programs are not feasible at facilities like PPGOH, where only a few
doctors provide part-time care and maintain full practices elsewhere. (Rivlin Direct). Some
PPGOH providers already participate in overnight calls at their other practices. (Rivlin Direct).

5

However, witnesses also agreed that risks of infection and extramural delivery likewise exist
when performing D&E without fetal demise.
17

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 18 of 43 PAGEID #: 904

Digoxin also presents side effects such as nausea and vomiting and can be painful
and anxiety-producing for the patient. (Liner Direct). There is no evidence that digoxin makes
the D&E procedure safer. (Keder Direct; JX-4 at 9 (Diedrich & Drey, Induction of Fetal Demise
Before Abortion (SFP Guidelines))). The Society for Family Planning (SFP) has concluded that
there are documented risks to digoxin use prior to D&E without a corresponding increase in
safety to the woman that would justify subjecting her to those risks. (Keder Direct; Valley Cross;
JX-4 at 8-9 (SFP Guidelines)). Likewise, ACOG has concluded that there is no evidence that
digoxin increases the safety of abortion procedures. (Keder Direct; JX-35 at 3 (ACOG Practice
Bulletin)).
There is virtually no data addressing the use of digoxin in women with
pregnancies before 18 weeks LMP—when most D&Es occur in Ohio. (Keder Direct, Liner
Direct, Rivlin Direct). Digoxin use prior to 18 weeks LMP would be experimental and entail
subjecting women to a procedure with risks that have not yet been quantified. (Keder Direct;
Liner Direct; Rivlin Direct; Haskell Direct).
At all gestational ages, digoxin injections may not be possible for a variety of
reasons, such as maternal health conditions, anatomical characteristics, or contraindications.
(Valley Cross; Keder Direct; Liner Direct; Rivlin Direct). In a study on digoxin cited by the
State, women were excluded for several contraindications, including renal failure and
hyperthyroidism. (Valley Direct; JX-3 at 2 (Jackson Study)). Digoxin injections can be
dangerous for women with certain cardiac conditions (Keder Direct; Liner Direct; Haskell
Direct) or allergies (Haskell Direct; Valley Cross). Digoxin injections are less likely to be
successful or achievable for women with obesity (Valley Cross; Haskell Direct; Liner Recross), a
history of cesarean sections (Haskell Direct), or uterine fibroids. (Keder Direct; Liner Recross).
18

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 19 of 43 PAGEID #: 905

Obesity and uterine fibroids are common in Ohio. (Keder Direct; Rivlin Direct). Fetal
positioning can also make digoxin administration difficult or impossible. (Keder Direct).
Importantly, digoxin fails to cause demise in up to 10% of cases. (Keder Direct;
Rivlin Direct; Haskell Direct). A study cited by the State found that intraamniotic injections had
a failure rate of 31%, and the average failure rate of all digoxin injections was 6.6%. (Valley
Cross; JX-5 at 3 (Molaei et al., Effectiveness and Safety of Digoxin to Induce Fetal Demise Prior
to Second-Trimester Abortion (Molaei Study))). The two testifying doctors who use digoxin
beginning after 18 weeks LMP reported multiple digoxin failures at their clinics. (Haskell Cross;
Liner Direct).
A physician cannot determine in advance if a digoxin injection will fail to cause
demise. (Keder Direct; Liner Direct; Rivlin Direct; Haskell Direct; Valley Cross). The physician
would only learn that there was a demise failure when he or she was about to start the evacuation
portion of the D&E procedure, approximately 24 hours after the digoxin injection. (Keder Direct;
Liner Direct; Haskell Direct). At that point, the woman’s cervix would be dilated and her
amniotic sac, or membranes, may be ruptured. (Keder Direct).
b. KCl
Fetal potassium chloride injections offer another alternative method to fetal
demise. To effect fetal demise via KCl injection, maternal fetal medicine (MFM) specialists
administer KCl directly into the fetal heart (intracardiac) to cause fetal demise. (Keder Direct;
Ralston Direct). None of the Plaintiffs’ providers use KCl prior to a D&E, nor do they possess
the requisite training and skill to do so. (Keder Direct; Liner Direct; Rivlin Direct; Haskell
Direct). This testimony is supported by the medical literature:

19

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 20 of 43 PAGEID #: 906

Potassium chloride achieves its effect by disrupting the
balance of intra- and extracellular potassium ions, decreasing
the conduction of action potentials in cardiac myocytes, thus
leading to bradycardia and, eventually, asystole. Because it
must be administered by intracardiac injection for maximum
effect on the myocardium, KCl injection requires more
technical skill than intrafetal or intra-amniotic digoxin
injection [51].
(JX-4 (Induction of fetal demise before abortion)).
When attempting fetal demise with KCl, the intent is to inject it directly into the
fetal heart, causing asystole (cessation of cardiac activity). (Valley Direct; Ralston Direct). If the
fetal heart is missed, intrathoracic injections may also be successful. (Valley Direct). 6 The
procedure typically takes 15 to 20 minutes. (JX-27 ¶ 28 (Ralston Decl.)). If the physician reaches
the fetal heart, demise occurs in about two minutes and the physician thereafter completes the
evacuation procedure. (JX-11 at 2 (Pasquini et al., Intracardiac Injection of Potassium Chloride
as Method for Feticide)).
Physicians who administer KCl injections do so by using a needle to inject the
drug transabdominally (through the woman’s skin, fat, muscle, abdominal cavity, and then the
amniotic sac, fetus, and fetal heart) to attempt to cause fetal demise. (Ralston Direct). The fetal
heart is a very small, moving target that the specialist must reach. (Ralston Direct). Intracardiac
KCl injections become even more difficult when maternal health conditions, such as obesity,
uterine fibroids, muscular tumors, or scar tissue, block the uterus. (Ralston Direct). At earlier
gestational ages, KCl injections are particularly difficult because of the small fetal heart/thorax,

6

However, intrathoracic injections are less effective in causing demise. (Ralston Direct). They
typically require a higher dosage of KCl, presenting greater risks to the woman. (Valley Cross;
Ralston Direct). Like intracardiac KCl injections, the skills needed for intrathoracic injections are
beyond that of a typical OB/GYN and much greater than that required for amniocentesis.
(Ralston Direct).
20

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 21 of 43 PAGEID #: 907

which may be a moving target due to patient movement. (Ralston Direct). At later gestations, the
additional tissue and increased fetal movement complicate the procedure. (Ralston Direct). If
administered incorrectly, KCl injections can cause maternal cardiac arrest. (Valley Cross; Keder
Direct; Ralston Direct). KCl injections also pose additional health risks to women, including the
risk of infection, bleeding, and accidental bowel perforation, which can cause sepsis. (Ralston
Direct).
Intracardiac KCl injections are technically challenging, requiring years of
specialized training only available through a three-year MFM subspecialty fellowship undertaken
after completion of a four-year OB/GYN residency. (Keder Direct; Liner Direct; Ralston Direct).
It is one of the more difficult procedures that MFM specialists perform. (Ralston Direct). In fact,
even some MFM fellows do not receive KCl training. (Valley Cross). Others cannot develop the
advanced spatial recognition and fine motor skills necessary to accomplish a KCl injection.
(Ralston Direct). Of the 20 to 40 MFM fellows or junior faculty members that Dr. Ralston has
trained in KCl, 5 to 10 were unable to master the procedure. (Ralston Direct). In the studies
relied on by the State, all KCl procedures were completed by MFM specialists. (Ralston Direct).
There is no process or structure in place by which a practicing doctor in Ohio,
particularly a non-OB/GYN, could become trained in KCl injections to cause demise. (Liner
Direct; Keder Direct). Proficiency in KCl injections requires that a physician first achieve
competency in amniocentesis, potentially requiring performing hundreds of such procedures.
(Ralston Direct). During his MFM fellowship, Dr. Ralston observed KCl procedures
approximately a dozen times himself before attempting to perform one under supervision, even
after having performed other intrauterine needle-based procedures. (Ralston Direct). To learn
KCl, a doctor in Ohio would have to apply and gain admission to a three-year MFM fellowship

21

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 22 of 43 PAGEID #: 908

program. (Liner Direct; Keder Direct). MFM specialties require prior OB/GYN certification.
(Liner Direct; Ralston Direct). Therefore, doctors in Ohio who are not OB/GYNs, like Dr. Liner,
would have to complete a total of seven additional years of education and training to earn an
MFM accreditation. (Liner Direct).
Despite Dr. Valley’s representations to the contrary, KCl injections are not akin to
amniocentesis; they are more complex. (Ralston Direct). During an amniocentesis, a physician
inserts a needle into the large, immobile amniotic sac, with the primary concern being avoiding
the much smaller fetus. (Ralston Direct). A KCl injection, by contrast, requires the physician to
identify the precise location and angle at which to insert the needle to reach the very small and
moving fetal heart. (Ralston Direct). In any event, amniocentesis is not taught in current
OB/GYN training programs. (Ralston Direct; Keder Direct; Valley Cross).
Additionally, KCl procedures require high resolution ultrasound machines that
provide detailed imagery and fine delineation of fetal structure. (Ralston Direct; Haskell Direct
and Cross). (See also JX-14) (“Although intrathoracic KCl is highly effective, it requires
additional training and a high level of ultrasonography skills and equipment”)). These machines
are not currently available in Plaintiffs’ facilities and can cost up to $250,000 (Ralston Direct;
Haskell Direct).
Ultimately, Ohio providers testified that they would be unable to perform KCl
injections, because of their lack of experience and adequate equipment. (Liner Direct; Haskell
Direct). While KCl is an alternative to digoxin and UCT, the use of KCl to cause demise by
Ohio’s abortion providers in outpatient facilities is not practicable and would be unsafe for
patients. (Ralston Direct).

22

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 23 of 43 PAGEID #: 909

c. Umbilical Transection
Umbilical cord transection offers another alternative to cause fetal demise. In a
transection, a clinician inserts a surgical instrument or suction into the uterus, grasps the
umbilical cord, and transects (i.e., cuts) it. Dr. Keder testified that the transection interrupts the
blood flow into the fetus, causing the fetus to die. (Keder Direct). None of Plaintiffs’ providers
use this procedure to cause demise prior to a D&E. (Keder Direct; Liner Direct; Rivlin Direct;
Haskell Direct).
Fetal demise follows within minutes of the cord transection, averaging three and a
half minutes in one study of the procedure, with an upper limit of 11 minutes. (JX 14 at 714). Dr.
Keder agreed that 95 percent of umbilical cord transections in that study caused fetal demise
within seven minutes. (Keder Cross).
To transect the cord as envisioned by the State, the physician must rupture the
amniotic membranes, grasp the cord with instruments, and divide it. (Keder Direct; Liner Direct;
Rivlin Direct). Rupturing the amniotic membranes causes the amniotic fluid to drain from the
uterus. (Keder Direct). The physician would then have to wait for cessation of fetal heart tones,
which can take up to 11 minutes. (Keder Direct).
The statute provides no guidance, or forgiveness, for accidentally grasping fetal
tissue. This is a risk because the physician often cannot see the umbilical cord on ultrasound
once the amniotic fluid is drained. (Liner Direct; Rivlin Direct). Without amniotic fluid, the
uterus contracts and the fetal tissue, placenta, and cord become compressed into a single mass
that is difficult to image on an ultrasound. (Keder Direct; Liner Direct). In such circumstances,
there is no way to reliably distinguish the cord from fetal tissue on an ultrasound. (Keder Direct;
Liner Direct). This is a particularly significant issue earlier in pregnancy, when the cord is

23

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 24 of 43 PAGEID #: 910

smaller and thus harder to locate. (Keder Direct; Liner Direct; Rivlin Direct). In response to
questioning from the Court, Dr. Valley expressed the view that UCT is the least practicable of
the State’s three proposed demise methods because of the difficulty in visualizing the procedure
on an ultrasound. (Valley Court Examination). The fetus may also drop down when the amniotic
fluid is drained, blocking the cervix and preventing the physician from reaching the cord. (JX-22
¶ 43 (Keder Decl.)).
UCT subjects women to health risks over and above the risks associated with the
D&E procedure itself. (Keder Direct; Rivlin Direct). Additional passes of surgical instruments
through the cervix and into the uterus to try to locate the cord presents risks of lacerations
(Valley Cross), blood loss, uterine perforation, infection (Rivlin Direct), and hemorrhage
(Haskell Direct). This is contrary to OB/GYN training, which teaches that doctors should use as
few intrauterine passes as possible to minimize the risk of infection or trauma. (Keder Direct). In
some instances, performing a UCT requires a physician to reach higher up into the uterine cavity
than would otherwise be necessary for a D&E procedure, violating a basic principle of safe D&E
performance. (Haskell Direct). UCT also prolongs procedure time for the woman as the
physician would need to wait up to 11 minutes after transecting the cord for fetal demise to
occur. (Keder Direct; Liner Direct; Rivlin Direct). Any time a surgical procedure is elongated,
additional risks are created for the patient. (Valley Cross). Specifically with respect to UCT,
during the time the physician waits to confirm fetal demise, the patient would be exposed to
additional anesthesia, which increases risks to the patient (Valley Cross; Ralston Direct), and
potentially further blood loss (Rivlin Direct).
Furthermore, Dr. Haskell testified that, in 1999, he had performed around 3,000
late-term D&E procedures with only 3 major complications, which equates to a 0.1 percent

24

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 25 of 43 PAGEID #: 911

complication rate. However, he also testified that these late term D&E procedures averaged 15
minutes, but could take as long as 30 or 45 minutes. (Haskell Cross). Additionally, Dr. Haskell
testified that the late term D&E procedures could involve up to 50 passes of the instruments in
order to completely remove the fetus and placenta. (Haskell Cross).
At the time the physician is attempting to locate and transect the cord, the
woman’s cervix will have been dilated, her amniotic sac will have ruptured, and instruments will
have already been introduced into the uterus in an attempt to locate the cord. (Keder Direct;
Rivlin Direct). Failing to complete the procedure at that point subjects the patient to risks of
infection, bleeding, and extramural delivery. (Keder Direct). It is in the best interest of the
patient to complete the evacuation procedure as quickly and as safely as possible in order to
minimize these risks. (Rivlin Direct).
The inability to effectively visualize the uterine contents also exposes doctors to
the risk of violating the statute each time a cord transection is attempted. (Keder Direct; Liner
Direct). It is highly likely that a doctor will grasp fetal tissue instead of the cord, violating the
express language of S.B. 145. (Keder Direct). The State’s witness also recognized this as a
potential consequence of UCT. (Valley Cross).
Finally, the Court would note that UCT is minimally researched. (Keder Direct;
Liner Direct). The single study discussing the use of routine UCT as a method of inducing fetal
demise was a retrospective study based on the charts of one clinic. (Keder Direct; JX-14 at 2 (Tocce
Study II)). The foregoing study noted that “[t]here are no published studies to date which specifically
examine the characteristics of UCT as a method of inducing fetal demise prior to D&E.” (JX-14 at
4).

25

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 26 of 43 PAGEID #: 912

6. Fetal Pain
Fetal demise would ensure that the fetus cannot perceive pain as it is being
dismembered. Dr. Valley testified that the medical literature has not reached a conclusion on
fetal pain, and that the issue is disputed. However, the general consensus of the medical
community is that fetal pain is not possible before at least 24 weeks LMP, when neural
connections to the cortex develop, because a functioning cortex is necessary for pain perception.
(Ralston Direct). An article published by the Society of Family Planning explained that:
[T]he best indicator as to when a fetus
has potentially the capacity to experience pain is the
development of the thalamocortical axons, which do not
occur until at least 29 weeks of gestational duration;
however, their functionality within the intrauterine environment
has not been determined.
(JX-4 (Induction of fetal demise before abortion)).
Every major medical organization that has examined the issue of fetal pain has
reached similar conclusions, including ACOG and the Royal College of Obstetricians and
Gynecologists (RCOG). (Valley Cross; Ralston Direct). RCOG’s 2010 report on fetal pain
reviewed “all . . . evidence of relevance to fetal awareness and pain,” (JX-38 at 9 (Royal College
of Obstetricians and Gynecologists, Fetal Awareness: Review of Research and
Recommendations for Practice (RCOG, Fetal Awareness))), including information from over 50
papers pertaining to functional development and how this evidence may be interpreted (JX-38 at
13 (RCOG, Fetal Awareness)). Several peer-reviewed studies have reached similar conclusions.
(Ralston Direct; JX-39 at 15-16 (Apkarian et al., Human Brain Mechanisms of Pain Perception
and Regulation in Health and Disease); JX-40 at 5-7 (Kostovic & Jovanov-Milosevic, The
Development of Cerebral Connections During the First 20-45 Weeks’ Gestation)).

26

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 27 of 43 PAGEID #: 913

The Royal College of Obstetricians and Gynecologists does note a minority
position within their members. In 2007, those minority members submitted a report stating, “We
are deeply concerned that the RCOG failed to give full information to the House of Commons
Select Committee . . . since 1997 the RCOG has consistently denied that foetuses can feel pain
earlier than 26 weeks, without acknowledging that amongst experts in this field there is no
consensus. Professor Anand is a world authority in the management of neonatal pain and has put
forward a cogent argument suggesting that the RCOG position is based on a number of false or
uncertain presuppositions.” (JX 38 at 1 (emphasis added)).
However, even independent of the majority and minority positions on fetal pain,
the medical literature and Plaintiffs’ expert’s clinical observations also suggest that a fetus
cannot experience pain at any gestational age, because it is kept in a sleep-like state by
environmental factors in the uterus, including certain hormones and low oxygen levels. (Ralston
Direct; JX-42 at 4 (Rigatto et al., Fetal Breathing and Behavior Measured Through a DoubleWall Plexiglass Window in Sheep); JX-43 at 3 (Derbyshire, Can Fetuses Feel Pain?); JX-44 at
10 (Mellor et al., The Importance of ‘Awareness’ for Understanding Fetal Pain)). In performing
procedures that would cause pain to a conscious person, Dr. Ralston has never witnessed a fetus
react in a way that would indicate reception to pain. (Ralston Direct).
Accordingly, based on the record medical literature, the Court finds it unlikely
that pre-viability fetuses feel pain. The Court recognizes, however, the State’s interest in
legislating in this area to prevent even the possibility.
7. Informed Consent and Other Ohio Regulations
Abortion care in Ohio is extensively regulated. (Keder Direct). Women must
attend a counseling visit at least 24 hours before the procedure for a legally mandated ultrasound,

27

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 28 of 43 PAGEID #: 914

during which the doctor must describe the fetal development and inform the patient in writing if
a fetal heartbeat was detected. (Keder Direct). This requirement adds a third day to an already
two-day D&E procedure and creates an obstacle for many patients, some of whom are from rural
areas and must travel long distances to a clinic, taking time off from work or school. (Keder
Direct). Ohio has banned all abortions after 22 weeks LMP (Keder Direct) and D&X procedures
at any gestational age. It requires that each clinic have a written transfer agreement with a
hospital located within 30 miles. Ohio Admin. Code § 3701-83-19(E); Ohio Rev. Code Ann. §
3702.303. The Court takes judicial notice that Ohio has just enacted a law banning all abortions
after a fetal heartbeat is detected, which would effectively ban most abortions in the State. S.B.
23, 133rd Gen. Assmb. (Ohio 2019).

III.

ANALYSIS

As final relief, Plaintiffs seek an Order from this Court declaring Ohio Rev. Code
§ 2919.15 unconstitutional on its face, and a permanent injunction barring its enforcement. The
purpose of a preliminary injunction is to preserve the status quo prior to entry of the final order.
Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). In considering a
preliminary injunction, the court considers four elements: "(1) whether the movant has a strong
likelihood of success on the 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 v. Hrivnak, No. 3:11-cv-35, 2011 U.S. Dist. LEXIS 57689, at *8-9 (S. D. Ohio May 31,

28

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 29 of 43 PAGEID #: 915

2011). "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

The law is well settled that women possess a fundamental constitutional right of
access to abortions. Roe v. Wade, 410 U.S. 113, 153-54, 93 S. Ct. 705, 727, 35 L. Ed. 2d 147
(1973). However, the right to terminate a pregnancy is not absolute: “[A] state may regulate
abortion before viability as long as it does not impose an ‘undue burden’ on a woman’s right to
terminate her pregnancy.” Women’s Med. Prof’l Corp. v. Taft, 353 F.3d 436, 443 (6th Cir. 2003)
(quoting Planned Parenthood v. Casey, 505 U.S. 833, 876 (1992)). The undue burden test was
recently summarized by the Supreme Court as follows: “there exists an undue burden on a
woman's right to decide to have an abortion, and consequently a provision of law is
constitutionally invalid, if the purpose or effect of the provision is to place a substantial obstacle
in the path of a woman seeking an abortion before the fetus attains viability.” Whole Woman's
Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016) (quotation marks omitted). In other words, a
regulation of abortion method is constitutional if it (1) imposes no undue burden, and (2) is
rationally related to a legitimate state interest, such as the interest in regulating the medical
profession and promoting respect for life, including the life of the unborn. Gonzales, 550 U.S. at
158. The Court will begin by assessing the “purpose” of Ohio Rev. Code § 2919.15; thereafter,
the Court will assess its effect.

1. Purpose of the Act
“One requirement that Casey and its progeny establish . . . is that a state
regulation that applies to pre-viability stage abortions must have a legitimate or valid purpose
29

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 30 of 43 PAGEID #: 916

other than simply reducing the number of abortions.” W. Ala. Women's Ctr. v. Williamson, 900
F.3d 1310, 1318 (11th Cir. 2018). Here, the statute at issue describes in detail the nature of the
D&E procedure. Based on the language contained in the statute, this Court concludes that the
General Assembly’s “description of the prohibited abortion procedure demonstrates [its]
rationale for the [prohibition]," i.e., to end a practice that many would find inhumane. See
Gonzales, 550 U.S. at 156. Consistent with that end, the State represents that legitimate
governmental interests justify the statute’s limitations on D&E procedures, “as Ohio seeks to
promote respect for life, protect the medical community, and eliminate the possibility for pain for
the unborn child.” (Doc. 25, PageID 254).
Initially, the Court would observe that the weight of medical authority supports
Plaintiffs’ contention that – in the period where D&E procedures are performed in Ohio – a fetus
lacks the necessary connections between its nerves and the cortex to perceive pain. Regardless,
the unlikelihood of fetal pain at the relevant gestational age does little if anything to diminish the
legitimacy of the State’s proffered interests in enacting Ohio Rev. Code § 2919.15. The
Supreme Court has held that “[n]o one would dispute that, for many, D&E is a procedure itself
laden with the power to devalue human life.” Gonzales, 550 U.S. at 158. Although context
shows that the Supreme Court was referring to intact D&E, or partial birth abortion, the D&E
procedure at issue here is just as laden with the power to devalue human life as partial birth
abortion. Dismemberment, limb by limb, occurs in both procedures. Indeed, Justice Ginsburg
has noted that both methods are equally gruesome. Id. at 182.
In light of the above, this Court holds that, even in the absence of fetal pain, the
State’s proffered rationale for the statute is supported by legitimate governmental interests.
Specifically, the act of tearing a living fetus apart could “coarsen” society and the medical
30

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 31 of 43 PAGEID #: 917

profession “to the humanity of not only newborns, but all vulnerable and innocent human life,
making it increasingly difficult to protect such life." Id. at 157. Furthermore, “[u]nder [Supreme
Court] precedents it is clear the State has a significant role to play in regulating the medical
profession.” Id. at 156. In the context of abortion, the State’s interest is especially clear because
of the convergence of legal, medical, and moral considerations. The dignity of the medical
profession teeters in the balance. While the feasibility (or lack thereof) of the State’s alternatives
is discussed below, the Court holds that the State’s interest in protecting human life and the
dignity of the medical profession is legitimate.
2. Effect of the Act
Even where the government acts with a legitimate purpose, a statute governing
abortion may still be unconstitutional in effect. Hellerstedt, 136 S. Ct. at 2309 (citing Casey, 505
U.S. at 877, 112 S. Ct. at 2820; see also Gonzales, 550 U.S. at 161 ("The Act's furtherance of
legitimate government interests bears upon, but does not resolve, . . . whether the Act has the
effect of imposing an unconstitutional burden on the abortion right . . . ."). Whether the statute,
in effect, causes an undue burden depends in part on the type of constitutional challenge
mounted—facial or “as applied.”
a. Facial Challenge
Plaintiffs challenge Ohio Rev. Code § 2919.15 on its face. Initially, the Court
would note that, in Gonzales, the Supreme Court expressed disfavor for pre-enforcement facial
challenges to abortion statutes. 550 U.S. at 168. Specifically, in reviewing the federal ban on
partial birth abortion, the Supreme Court stated:
It is neither our obligation nor within our traditional institutional
role to resolve questions of constitutionality with respect to each
31

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 32 of 43 PAGEID #: 918

potential situation that might develop. "[I]t would indeed be
undesirable for this Court to consider every conceivable situation
which might possibly arise in the application of complex and
comprehensive legislation." United States v. Raines, 362 U.S. 17,
21, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960) (internal quotation marks
omitted). For this reason, "[a]s-applied challenges are the basic
building blocks of constitutional adjudication."
Id. However, this Court is not convinced that Gonzales’ preference for as-applied challenges
precludes an inquiry into the facial constitutionality of Ohio Rev. Code § 2919.15 in this case.
Plaintiffs argue that, unlike the ban on partial birth abortion at issue in Gonzales, where
alternatives to D&X existed, Ohio’s D&E ban absent successful fetal demise leaves physicians
with no realistic alternatives. Plaintiffs essentially contend that a ban on D&E paralyzes
physicians and in turn their patients in 100% of pre-viability, second trimester cases, because
requiring that the doctor first ensure fetal demise forces them to assume risks (such as the need to
employ experimental procedures) that leave them with no other choice but to abandon D&E
altogether— and again, no alternatives (induction, hysterotomy, etc.) are available in the
outpatient setting. Accordingly, the issue Plaintiffs present is sweeping enough in nature, such
that the Court will entertain the facial challenge.
b. Large Fraction
The standard for establishing undue burden in the specific context of facial
challenges to abortion statutes “has been a subject of some question.” Gonzales, 550 U.S. at 167
(comparing Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514, 110 S. Ct. 2972,
111 L. Ed. 2d 405 (1990) ("[B]ecause appellees are making a facial challenge to a statute, they
must show that no set of circumstances exists under which the Act would be valid" (internal
quotation marks omitted)), with Casey, 505 U.S., at 895, 112 S. Ct. 2791, 120 L. Ed. 2d 674
(opinion of the Court) (indicating a spousal-notification statute would impose an undue
32

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 33 of 43 PAGEID #: 919

burden "in a large fraction of the cases in which [it] is relevant" and holding the statutory
provision facially invalid)). However, the Parties generally agree that Casey’s “large fraction”
standard applies. (Defendants’ Opp., Doc. 25, PageID 266); (Plaintiffs’ Reply, Doc. 28, PageID
559). Accord: Cincinnati Woman’s Servs. v. Taft, 468 F.3d 361, 367 (6th Cir. 2006) (holding
that to prevail a plaintiff must show that “in a large fraction of the cases in which [the abortion
restriction] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an
abortion”).
Initially, the Court would note – as it did in the TRO – that other courts that have
reviewed state statutes similar to the one at issue here have declared them unconstitutional. See,
e.g., Williamson, 900 F.3d at 1310; Whole Woman’s Health v. Paxton, 280 F. Supp. 3d 938
(W.D. Tex. 2017). However, the State has argued since the inception of this litigation that the
Paxton court’s decision was based on a mistaken belief, in reliance on Hellerstedt, that the
challenged legislation must always confer “medical benefits” on a woman to be constitutional.
Specifically, the State argues that an analysis of “medical benefits” applies only where a state
cites health/safety reasons as its legitimate governmental purpose for legislating, and such a
rationale was not offered by the State here. In other words, if a state offers such a rationale, then
it must back it up with health-based evidence. In light of the Supreme Court’s opinions
predating Hellerstedt, the Court generally agrees, as it is skeptical that Hellerstedt meant to
require a medical or health “benefit” to the woman for every restriction on pre-viability abortion,
regardless of the subject matter of the legislation. That said, the Court believes that the Paxton
court would have reached the same result with or without a “medical benefit” analysis because,
at the end of the day, it determined that the legislation at issue burdened a “large fraction” of

33

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 34 of 43 PAGEID #: 920

women. Paxton, 280 F. Supp. 3d at 952. The State’s argument is noted, but the Court still treats
Paxton as persuasive authority.
Also, the Court must address the State’s argument that the Court must defer to the
State’s factfinding in this case. The Court disagrees. The Act includes no legislative factfinding.
Even if it had, such factfinding is not entitled to “[u]ncritical deference.” Gonzales, 550 U.S. at
166. Courts “retain[] an independent constitutional duty to review factual findings where
constitutional rights are at stake.” Id. at 165. The Court will thus preliminarily weigh the
evidence presented in this case.
Here, Plaintiffs presented significant, credible evidence via declaration and at the
evidentiary hearing supporting that the Act’s implicit fetal demise requirement causes an undue
burden to a large fraction of women. Each of the State’s suggested demise options have serious
drawbacks, that vary depending on the gestational age and size of the fetus. While these
gestational periods are certainly discussed in each of the parties’ position papers, they are not
addressed in the Act, which is technically silent on the issue of fetal demise. The most obvious
issues linked to gestational age/size are the unstudied nature of digoxin prior to 19 weeks, and
the failure rate that exists post-19 weeks; the highly specialized skill, training, knowledge and
equipment required for KCl injections, which are rendered even more difficult where fetal size is
small; and the risk of grasping fetal material in the UCT procedure, which is particularly likely
when the umbilical cord is small.
Furthermore, of the above methods, digoxin is the only method being used in
Ohio clinics with any degree of regularity – generally, to avoid accidentally violating the partial
birth abortion ban – but it simply cannot be used in all pre-viability, second trimester abortions.
The Court has preliminarily found that: (1) digoxin may be contraindicated due to, inter alia,
34

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 35 of 43 PAGEID #: 921

patient allergies, patient cardiac issues, or gestational age (i.e., there is no research regarding the
safety/efficacy of digoxin prior to 19 weeks, making its administration arguably experimental);
(2) digoxin may be difficult or impossible to administer into the amniotic fluid/fetus with a
needle due to patient obesity or fibroids, which is a common issue for women seeking D&E; (3)
medical literature supports that digoxin fails up to 10% of the time, and there is no research on
whether it is safe to administer a second dose of digoxin to effect demise. The existence of
potassium chloride and UCT, as either primary or backup demise methods, does not offer an
acceptable safety net that would allow doctors to move forward. Potassium chloride is
dangerous to the woman, so it is imperative that the target (a small fetal heart or thorax) not be
missed. Accordingly, the administration of potassium chloride is a precise procedure requiring
that a maternal fetal medicine specialist use advanced ultrasound technology that exists only in
hospitals. Contrary to Dr. Valley’s testimony, the Court is not persuaded that the skill or
equipment to perform potassium chloride injections in the outpatient setting can be readily
obtained. 7 UCT is also not a feasible primary or backup option, because it requires that the
amniotic sac be punctured and that the cord be located without accidentally dismembering the
fetus, which is not always possible due to diminished ultrasound clarity and fetal positioning.
The State claims that it would not prosecute such accidental dismemberments, but “[m]id-

7

Drs. Ralston and Valley clearly approach the issues from different perspectives. This does not
automatically disqualify either witness’ testimony if such testimony is supported by the medical
and scientific record. It is the court’s job to determine the persuasiveness of the testimony and
evidence. Dr. Ralston’s testimony was supported by theories and techniques that have been
medically and scientifically tested and subjected to peer review published literature. The known
and potential rates of error for injections is likewise well published, and his testimony is in
accordance research generally accepted by the medical community. While Dr. Valley’s
testimony has limited support, Dr. Ralston’s opinions on fetal pain and needle procedures are
shared by a much broader expanse of the medical and scientific community, and is therefore
more persuasive in the Court’s determination of the issues.

35

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 36 of 43 PAGEID #: 922

litigation assurances are all too easy to make and all too hard to enforce, which probably explains
why the Supreme Court has refused to accept them.” Williamson, 900 F.3d at 1328 (citing
Stenberg). Indeed, nothing prevents the State from later taking the position that scienter to
violate the Act is present when a physician even attempts UCT, because the substantial risk of
dismemberment is always there. Finally, abandoning the D&E mid-procedure is also not an
option, because the cervix has already been dilated. Sending the patient home without
completing the D&E creates a significant risk of extramural delivery.
In the face of the foregoing complications, the State points to the statute’s medical
exception to rebut Plaintiffs’ undue burden argument. However, the medical exception is
narrowly drafted at best, and unconstitutionally vague at worst. 8 The exception states that D&E
may be performed if it 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) (emphases added). This exception does
not adequately resolve the quandary faced by physicians presented with the failure of a demise
procedure: at what point in the process does a physician determine the existence of a “serious
risk” of “substantial and irreversible physical impairment of a major bodily function” – when the
demise attempt first fails? After a second, experimental attempt is made? After the physician
engages in an undefined wait-and-see period during which his or her patient is experiencing
blood loss while anesthesia wears off? Doctors who take early action will be the subject of

8

To be clear, the Court is not passing on the issue of vagueness at this time. Based on the
testimony of Plaintiffs’ witnesses, however, the Court has significant concerns regarding the
potential vagueness of the medical exception that the Court will consider before entering final
judgment in this case.
36

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 37 of 43 PAGEID #: 923

opinionated second-guessing (and potential prosecution), while procrastination increases the risk
of harm to the patient. In the case of digoxin failures, doctors would thus be forced to choose
between: violating the law and proceeding with the evacuation procedure; attempting a second
digoxin injection or demise method, which attempts are untested and additionally risky (Keder
Direct); allowing the patient to deteriorate to the point where the physician felt that the exception
applied (JX-22 ¶ 35 (Keder Decl.)); or abandoning the patient, in contravention of professional
and ethical responsibilities (Rivlin Direct), despite the risks attendant to having already dilated
the patient’s cervix. Digoxin is the most feasible of the three methods (where a patient is even a
candidate for it), yet the worst-case scenario still lurks at the outset of every D&E because the
doctor has no safety valve or backup to select if digoxin fails. The medical exception is
inadequate. Casey, 505 U.S. at 879 (citing Roe v. Wade, 410 U.S. 113, 164-65, 93 S. Ct. 705, 35
L. Ed. 2d 147 (1973));Stenberg v. Carhart, 530 U.S. 914, 854, 120 S. Ct. 2597, 2612 (2000).
The Court thus concludes, based on the current record, that Plaintiffs are likely to
succeed on the merits. While the Court is cognizant of the Supreme Court’s warning in
Gonzales that lower courts are not to declare legislation unconstitutional after focusing on “every
conceivable situation” that could arise, the Court does not believe that that warning applies here.
In Gonzales, a feasible backup procedure was available. 550 U.S. at 165 (“Alternatives are
available to the prohibited procedure. As we have noted, the Act does not proscribe D&E.”). No
such backup procedure exists here. D&E is the only pre-viability second trimester abortion
method available in the outpatient setting in Ohio. Without the option of selecting a different
method, or the ability to rely on a sufficiently broad medical exception, physicians who perform
D&E are presented with a series of demise options that layer risks on top of existing risks
(particularly where demise fails after the first attempt), forcing doctors who perform D&E down

37

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 38 of 43 PAGEID #: 924

a path of no return should they be unable to effect pre-D&E demise. The literature supports that
failure to cause demise could arise for at least 10% of women who are even candidates for
digoxin; trying a second injection or demise method is experimental; and abandoning D&E, and
releasing the still-pregnant patient with a dilated cervix, creates the risk of extramural delivery.
To avoid this scenario, doctors may be forced to demur from performing pre-viability, second
trimester abortions altogether. Stenberg v. Carhart, 530 U.S. 914, 945-46, 120 S. Ct. 2597, 2617
(2000). The Act thus burdens a “large fraction” of women seeking pre-viability, second
trimester abortion.
The Court could consider a different conclusion had the State sought through the
Act to require fetal demise after 18 weeks LMP, when the medical literature supports usage of
digoxin; used language similar to Ohio’s partial birth abortion ban, which only requires that
demise be “attempted,” 9 thus eliminating the medical quandary inherent to making a second,
experimental demise attempt; and included a medical exception broad enough to provide doctors
the ability to use their judgment when demise fails without fear of prosecution. However, the Act
as written, combined with the record evidence regarding the science currently at the disposal of
Ohio physicians practicing in the outpatient setting, makes it unlikely that the can State
overcome Plaintiffs’ challenge. 10

9

See Ohio Rev. Code § 2919.151(G).

The State cites Plaintiffs’ ability to comply with this court’s TRO as evidence that statute does
not impose an undue burden. The difficulty in this logic is that the Court’s TRO dealt with and
addressed, on a temporary basis, the readily apparent flaws in the legislation. Based on the record
before the Court, the Act as written presents substantial obstacles to a large fraction of Plaintiffs’
patients, as evidenced by the experimental aspect of the pre-18 week demise procedures cited by
the Court.
10

38

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 39 of 43 PAGEID #: 925

As for the preliminary remedy: the Parties at various points have suggested that
the Court consider at least partial preliminarily relief, as opposed to wholesale relief for the
opposing side. The Court construes these requests as triggering the Supreme Court’s
requirement to determine whether “finely drawn” relief is appropriate and possible. Ayotte v.
Planned Parenthood, 546 U.S. 320, 331, 126 S. Ct. 961, 969 (2006). In Ayotte, the Supreme
addressed “three interrelated principles [that] inform [courts’] approach to remedies”:
First, the Court seeks to avoid "nullify[ing] more of a legislature's
work than is necessary," because doing so "frustrates the intent of
the elected representatives of the people." Id. For this reason where
partial, rather than facial, invalidation is possible, it is the "required
course." Id. Second, the Court noted that "mindful that our
constitutional mandate and institutional competence are limited,
we restrain ourselves from rewriting state law to conform it to
constitutional requirements even as we strive to salvage it." Id.
This consideration counsels in favor of looking to how clearly the
court has "already articulated the background constitutional rules
at issue and how easily we can articulate the remedy." Id. Thus
where the Court has established a bright line constitutional rule, it
is more appropriate to invalidate parts of the statute that go beyond
the constitutional line, whereas "making distinctions in a murky
constitutional context, or where line-drawing is inherently
complex, may call for a 'far more serious invasion of the legislative
domain' than we ought to undertake." Id. at 330 (quoting United
States v. Nat'l Treasury Employees Union, 513 U.S. 454, 479 n.26,
115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995)). Finally, the Court
considers legislative intent, and inquires whether the legislature
would prefer to have part of the statute remain in force. Id. At the
same time, however, the Court is "wary of legislatures who would
rely on our intervention," because where states merely cast as wide
a net as possible and leave it to the courts to determine the
permissible extent of a statute's reach, they run the risk of
delegating legislative authority to the judiciary. Id.
Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 333-34 (6th Cir. 2007) (quoting
Ayotte).
Here, the Court will begin with the first and third considerations. While Plaintiffs
seek facial relief, and the Court has deemed Plaintiffs likely to prevail on their facial challenge to
39

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 40 of 43 PAGEID #: 926

the statute, the Court nonetheless has concerns about entering a full injunction based on an
expedited record developed without discovery. The Court construes Ayotte and Northland
Family Planning as permitting, and in some situations requiring, partial interim relief. See Taft,
444 F.3d at 517. And the Court believes that partial interim relief is supported by the statute’s
legislative intent. Indeed, the Court has little doubt that the Ohio General Assembly would
rather have part of its statute survive than see it entirely enjoined, particularly where the Court
has not yet reached final resolution on the merits. This intent is evidenced by the State’s papers,
where it invites the Court to “craft a remedy,” as well as the Act’s severability section. See Ohio
Rev. Code § 2919.205. While the Court does not wish to encourage the State to cast the widest
net possible, at the end of the day, a partial injunction will end dismemberment of living fetuses
in cases where demise can be performed safely and non-experimentally. Such a result aligns
with the intent of the State’s elected representatives.
The second consideration looks to whether drawing such lines is even practicable.
Initially, the Court would note that “there is a meaningful distinction between partially
invalidating or severing a statute (the course preferred under Ayotte), and adopting a narrowing
construction[.]” Id. at 335. “It may well be that a strained narrowing construction has more
potential to amount to judicial rewriting of the statute than does partial invalidation, even though
the two appear to be closely related.” Id. Regardless, “if either of these more limited remedies is
available, they [are the] preferred course.” Id. Here, the Court is navigating the constitutional
boundaries of an unwritten part of the statute. Specifically, fetal demise is not even mentioned in
the Act. Thus, it would not be accurate to state that the Court is “invalidating” a portion of the
Act, the way some courts might “invalidate” a subsection of a statute requiring spousal notice
(for example) based a “bright line” constitutional rule. Instead, any grant of partial relief here

40

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 41 of 43 PAGEID #: 927

would require the Court to engage in a narrowing construction, where it becomes more and more
difficult to avoid judicial rewriting. However, this will be a graver concern once the Court
reaches the final merits of this case. At present, however, the record before the Court enables it
to preliminarily identify specific categories of criminal prosecutions that must be enjoined to
avoid running afoul of the Constitution. The Court’s ability to identify these categories suggests
that a limited remedy is indeed available, so, as reflected in Section V below, the Court will enter
a partial preliminary injunction.
b. Irreparable Harm/Harm to Others
The Court will apply the same analysis here that it applied at the TRO phase.
“[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. LexingtonFayette 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.”). While physicians do not possess a constitutional right to perform abortions, they do
generally have standing to assert constitutional challenges on behalf of their patients in the
abortion context. 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). As the Court has preliminary found that
the Act creates an undue burden to a “large fraction” of women seeking a pre-viability, second
trimester abortion, particularly in the 15-18 week range, the second and third factors weigh in
favor of Plaintiffs.

41

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 42 of 43 PAGEID #: 928

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). Because the record at this juncture supports that the Act creates an undue
burden to a large fraction of women seeking a pre-viability, second trimester abortion, a
preliminary injunction serves the public interest.
IV.

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).
V.

CONCLUSION

The Motion (Doc. 4) for preliminary injunction is GRANTED IN PART.
Consistent with the above, the Court declines to enjoin Defendants from enforcing Ohio Rev.
Code § 2919.15 in its entirety. Each side has 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 PRELIMINARILY
42

 Case: 1:19-cv-00118-MRB Doc #: 49 Filed: 04/18/19 Page: 43 of 43 PAGEID #: 929

ENJOINED from prosecuting or otherwise pursuing legal action against medical professionals
based alleged violations of Ohio Rev. Code § 2919.15 accruing during the pendency of this
Court’s temporary and preliminary orders, in the following circumstances:
1. Where a physician performs D&E procedure before 18 weeks LMP;
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
preliminary injunction. Indeed, no party requested that such language be included in the Order.
Consistent with the above, there is no requirement of a bond. This Order is
effective upon entry.

IT IS SO ORDERED.

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

43