Case: 1:19-cv-00360-MRB Doc #: 43 Filed: 03/30/20 Page: 1 of 8 PAGEID #: 862

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Preterm-Cleveland, et al.,
Plaintiffs,
vs.
Attorney General of Ohio, et al.,
Defendants.

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: Case No. 1:19-cv-00360
:
: Judge Michael R. Barrett
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TEMPORARY RESTRAINING ORDER
This matter is before the Court on Plaintiffs’ Motion for a Temporary Restraining
Order and/or Preliminary Injunction. (Doc. 42). This matter is also before the Court on
Plaintiffs’ Motion to File a Supplemental Complaint. (Doc. 41).
I.

BACKGROUND
Plaintiffs—a collection of reproductive healthcare clinics and physicians providing

abortion care—filed their Initial Complaint in this matter in May 2019. The Initial Complaint
includes one count against Defendants challenging the constitutionality of Ohio Senate
Bill 23 of the 133rd General Assembly (“S.B. 23”) also known as the “Heartbeat Protection
Act.” (Doc. 1). Plaintiffs also filed a Motion for a Temporary Restraining Order and/or
Preliminary Injunction enjoining the enforcement of S.B. 23. (Doc. 2). In July 2019, the
Court granted Plaintiffs’ Motion for a Preliminary Injunction and enjoined Defendants from
enforcing or complying with S.B. 23 pending further Order of this Court. (Doc. 29). That
Order remains in effect.

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Pertinent to the current Order, on March 9, 2020, the Governor of Ohio declared a
State of Emergency via Executive Order in light of COVID-19. (Doc. 41-1, PageID 698701). “COVID-19 is a respiratory disease that can result in serious illness or death, is
caused by the SARS-CoV-2 virus, which is a new strain of coronavirus that had not been
previously identified in humans and can easily spread person to person.” Id.
On March 17, 2020, Defendant Director of the Ohio Department of Health, Amy
Acton, issued an order titled “RE: Director’s Order for the Management of Non-essential
Surgeries and Procedures throughout Ohio” (“Director’s Order”). Id. The Director’s Order
states, inter alia, that:
1. Effective 5:00 p.m. Wednesday March 18, 2020, all non-essential or
elective surgeries and procedures that utilized P[ersonal protective
equipment (“PPE”)] should not be conducted.
2. A non-essential surgery is a procedure that can be delayed without undue
risk to the current or future health of a patient. Examples of criteria to
consider include:
a. Threat to the patient’s life if surgery or procedure is not performed;
b. Threat of permanent dysfunction of an extremity or organ system;
c. Risk of metastasis or progression of staging; or
d. Risk of rapidly worsening to severe symptoms (time sensitive).
5. . . . This Order shall remain in full force and effect until the State of
Emergency Declared by the Governor no longer exists, or the Director of
the Ohio Department of Health rescinds or modifies this Order.
Id. Defendant Acton states that the Order’s purposes are to “prevent[] the spread of
contagious or infectious diseases” and “preserv[e PPE] and critical hospital capacity and
resources within Ohio.” Id. A violation of the Director’s Order is a second-degree
misdemeanor. See Ohio Rev. Code. § 3701.352.
On March 20, 2020 and March 21, 2020, Defendant Attorney General of Ohio,
Dave Yost, sent letters to Plaintiffs Planned Parenthood Southwest Ohio Region,

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Preterm-Cleveland, and Women’s Med Group Professional Organization citing the
Director’s Order and stating that “[t]he Ohio Department of Health has received a
complaint that your facility has been performing or continues to offer to perform surgical
abortions, which necessarily involve the use of PPE.” (Doc. 42-1, PageID 807); (Doc. 422, PageID 820); (Doc. 42-4, PageID 845). Defendant Yost ordered Plaintiffs “to
immediately stop performing non-essential and elective surgical abortions.” Id. Defendant
Yost concluded that, “[i]f you or your facility do not immediately stop performing nonessential or elective surgical abortions in compliance with the attached order, the
Department of Health with take all appropriate measures.” Id.
On March 30, 2020, Plaintiffs filed their Motion to File a Supplemental Complaint
and Motion for a Temporary Restraining Order and/or Preliminary Injunction. (Docs. 41,
42). The proposed Supplemental Complaint seeks to add a constitutional challenge to the
Director’s Order as applied to surgical abortion procedures. (Doc. 42-1). The Motion for
a Temporary Restraining Order and/or Preliminary Injunction requests that the Court
temporarily enjoin Defendants from enforcing the Director’s Order in a way that would
ban surgical abortion in Ohio. (Doc. 42).
The Court held two informal telephone conferences on March 30, 2020 pursuant
to S.D. Ohio Civ. R. 65.1 and Plaintiffs advised the Court of their preference for an
immediate ruling on their Motion for a Temporary Restraining Order as they have
scheduled surgical abortion surgeries this week.

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II.

ANALYSIS
a. Standard of Review
i. Motion to File Supplemental Complaint
Rule 15(d) of the Federal Rules of Civil Procedure governs supplemental pleadings

and permits a party to move to file, and the Court to permit, “a supplemental pleading
setting out any transaction, occurrence, or event that happened after the date of the
pleading to be supplemented.” FED. R. CIV. P. 15(d). “Rule 15(d) aims ‘to give the court
broad discretion in allowing a supplemental pleading.’” Ne. Ohio Coal. for the Homeless
v. Husted, 837 F.3d 612, 625 (6th Cir. 2016) (citing FED. R. CIV. P. 15(d) advisory
committee's note to 1963 amendment).
ii. Motion for Temporary Restraining Order
Under Federal Rule of Civil Procedure 65, the purpose of a temporary restraining
order is to preserve the status quo so that a reasoned resolution of a dispute may be had.
See, e.g., Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996).
In the Sixth Circuit, the standard for obtaining a temporary restraining order and
the standard for obtaining a preliminary injunction are the same. Workman v. Bredesen,
486 F.3d 896 (6th Cir. 2007). In determining whether to grant or deny a temporary
restraining order or a preliminary injunction, the Court must consider four factors:
“(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 Emps. Ass'n v.
Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (per curiam) (en banc) (internal quotation

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marks omitted). Due to the urgency of the situation, the Court will decide whether
temporary injunctive relief is warranted based on Plaintiffs’ Motion (Doc. 42), along with
the affidavits and documents filed in the record as of the date of this Order, and the two
telephonic conferences held on March 30, 2020. See FED. R. CIV. P. 65.
b. Holdings
i. Motion to File Supplemental Complaint
The facts in Plaintiffs’ Initial Complaint (Doc. 1) are sufficiently related to the facts
in Plaintiffs’ proposed Supplemental Complaint (Doc. 41-1) such that the Court will allow
Plaintiffs’ supplemental pleading. See Ne. Ohio Coal. for the Homeless, 837 F.3d at 625.
The Court finds that the combination of the overlapping subject matter, the Court’s
familiarity with that subject matter, and the Court’s prior entry of a Preliminary Injunction
related to that subject matter favor allowing the supplemental pleading. See id.
ii. Motion for Temporary Restraining Order
The Court concludes, for the reasons required under Federal Rule of Civil
Procedure 65(d), that Plaintiffs have shown (1) a likelihood of success on the merits of at
least one of its claims; (2) that Plaintiffs and their patients will suffer irreparable harm if
an injunction is not issued; (3) that the balance of harm favors Plaintiffs; and (4) that the
public interest weighs in favor of granting a temporary restraining order. See Hoover
Transp. Servs., Inc. v. Frye, 77 F. App’x 776, 781 (6th Cir. 2003) (“If [plaintiffs] can show
a likelihood of success on the merits of any of the claims, an injunction may issue, subject
to consideration of the other factors.”).
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 (1973). Yet the right to terminate

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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 of Southeastern Pa. v. Casey, 505 U.S. 833, 876 (1992) (emphasis added)).
“[T]here ‘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) (quoting Casey, 505 U.S. at 878 (emphasis added in Hellerstedt)).
Defendant Yost’s letters to Plaintiffs suggest his determination that surgical
abortions are non-essential surgeries and thus are subject to the Director’s Order. See
(Doc. 42-1, PageID 807); (Doc. 42-2, PageID 820); (Doc. 42-4, PageID 845). Defendant
Yost’s statements and order in those letters, without more guidance, implicate Plaintiffs’
patients’ Fourteenth Amendment rights. In balancing the four relevant factors and at this
stage in the proceedings, Plaintiffs have shown a likelihood of success on the merits on
its claim that enforcement of the Director’s Order as applied to surgical abortion
procedures will result in an unconstitutional deprivation of Plaintiffs’ patients’ Fourteenth
Amendment right to substantive due process because enforcement creates a substantial
obstacle in the path of patients seeking pre-viability abortions, thus creating an undue
burden on abortion access.
Turning to the factor of irreparable harm, Plaintiffs argue that their patients will
suffer serious and irreparable harm in the absence of a temporary restraining order and/or
preliminary injunction, as the Director’s Order prevents Ohio women from exercising their

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constitutional right to reproductive freedom as protected by the Fourteenth Amendment. 1
(Doc. 42). Inasmuch as this Court has determined that the Director’s Order likely places
an “undue burden” on a woman’s right to choose a pre-viability abortion, and thus violates
her right to privacy guaranteed by the Fourteenth Amendment, the Court further
determine that its enforcement would, per se, inflict irreparable harm.
With regard to the remaining factors concerning harm to others and the public
interest, Plaintiffs assert that their patients will suffer numerous irreparable harms without
injunctive relief and, given the indeterminate length of the Director’s Order, some could
be forced to forgo an abortion entirely and carry an unwanted pregnancy to term. (Doc.
42). Defendants have not demonstrated to the Court, at this point, that Plaintiffs’
performance of these surgical procedures will result in any beneficial amount of net saving
of PPE in Ohio such that the net saving of PPE outweighs the harm of eliminating
abortion. These favors weigh in Plaintiffs’ favor. See Am. Freedom Def. Initiative v.
Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 896 (6th Cir. 2012); Jackson
Womens’ Health Org. v. Currier, 940 F. Supp. 2d 416, 424 (S.D. Miss. 2013).
Accordingly, a temporary restraining order is proper. In that regard, and
understanding the novel intersection between the foregoing legal precedent in Roe,
Casey, and Hellerstedt that emphasizes the Fourteenth Amendment’s guarantee of the
right to reproductive freedom and Ohio’s interest in protecting its citizens during the
evolving COVID-19 emergency, the Court holds that Plaintiff healthcare providers are to
determine if a surgical abortion procedure can be safely postponed during the pre-viability

1

While clinics and physicians do not possess a constitutional right to perform abortions, they have standing
to assert constitutional challenges on behalf of their patients in the abortion context. See Planned
Parenthood of Greater Ohio v. Hodges, 917 F.3d 908 (6th Cir. 2019).

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stage to maximize healthcare resources to combat the COVID-19 pandemic. If a
healthcare provider determines, on a case-by-case basis, that the surgical procedure is
medically indicated and cannot be delayed, based on the timing of pre-viability or other
medical conditions, said procedure is deemed legally essential to preserve a woman’s
right to constitutionally protected access to abortions.
III.

CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiffs’ Motion to File a

Supplemental Complaint (Doc. 41) is GRANTED. It is further ORDERED that Plaintiffs’
Motion for a Temporary Restraining Order and/or Preliminary Injunction (Doc. 42) is
GRANTED IN PART, to the extent that it seeks a temporary restraining order, and HELD
IN ABEYANCE IN PART, to the extent that it seeks a preliminary injunction. Specifically,
it is hereby ORDERED that Defendant; Defendant’s officers, agents, servants,
employees, and attorneys; and those persons in active concert or participation with them
who receive actual notice of the order are TEMPORARILY RESTRAINED from enforcing
the Director’s Order against Plaintiffs as described above.
This Temporary Restraining Order is effective upon entry and expires fourteen (14)
days thereafter unless dissolved earlier or extended by the Court. There is no bond
requirement. See Molton 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).
IT IS SO ORDERED.
_s/ Michael R. Barrett________
Michael R. Barrett, Judge
United States District Court

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