(CN) – Attorneys for Ohio and a Cleveland abortion clinic argued Tuesday before the state’s high court over whether the clinic has standing to challenge abortion restrictions that were tacked on to the state budget.
Preterm-Cleveland sued in 2013 to challenge House Bill 59, the 2014-15 state budget bill, which the clinic claimed improperly included abortion restrictions in violation of Ohio’s “one-subject rule,” which mandates that every piece of legislation deal with one topic exclusively.
The clinic claimed the fetal heartbeat, hospital transfer agreement and “parenting and pregnancy” provisions of the bill are unconstitutional because they are not related to the state budget.
“Under the heartbeat provisions, if there is a detectable heartbeat the pregnant woman must be informed of the heartbeat and given the option to view and/or listen to it,” Preterm-Cleveland’s lawsuit said.
The trial court ruled that the clinic lacked standing to challenge the provisions. The Eighth District Court of Appeals reversed the decision, setting up the showdown before the Ohio Supreme Court.
During oral arguments Tuesday morning, Assistant Attorney General Ryan L. Richardson said Preterm lacked standing because it did not prove it had suffered an injury under the new laws.
She said, “Preterm has admitted that it has never been injured by the pregnancy and parenting provision,” which created a government program to provide services for pregnant woman and parents, including alternatives to abortion.
Richardson added that the clinic sought an exemption from the requirement to show that each challenged subject has caused an injury.
Justice R. Patrick DeWine asked Richardson about the written transfer agreement, which requires an abortion clinic to reach a new agreement with a hospital every two years.
“Preterm has not shown that it has been injured by the written transfer provision,” she replied.
The heartbeat provision requires a 24-hour waiting period after a heartbeat is detected before an abortion can be performed. Doctors must provide additional information to the pregnant woman during this period.
Richardson argued that the burden falls on the doctor, not the clinic. She noted that Preterm did not include a doctor as a plaintiff in the case.
She also claimed that the clinic has not shown a “credible fear of prosecution” under the law.
Preterm’s attorney B. Jessie Hill faced the justices next.
“The Ohio General Assembly tucked controversial provisions into a must-pass bill at the 11th hour,” she said.
Justice William O’Neill asked if the clinic was challenging the procedure of the law’s passage, rather than its substance. Hill said yes.
“The laws must be passed through a fair legislative process,” she said. “Otherwise, it would invite the General Assembly to include riders and add-ons, secure in the knowledge that they would not be challenged.”
Justice Terrence O’Donnell asked about the transfer agreement, which used to be automatically renewed each year under the previous law.
“It’s a new regulatory burden,” Hill said. “It is clearly enough to show an injury under the precedent we cite.”
DeWine said the affidavit of Preterm Director of Clinic Operations Heather Harrington contains the “conclusory statement” that the clinic was harmed.
“That is all we need to demonstrate,” said Hill. “In some of the cases we cite, merely signing a form is enough to show an injury. Our injury is greater because we have to sign a form with a third party.”
O’Donnell said the heartbeat law only makes requirements of the doctor, not of Preterm.
“The entire clinic is involved in the process of informed consent,” Hill replied.
Chief Justice Maureen O’Connor asked if the clinic has to increase the number of ultrasounds.
Hill said that if no heartbeat is detected on the first visit, but it is detected on the ultrasound before the abortion, then the patient would have to return at least 24 hours later for a third visit.
Justice Judith French asked Hill if it’s true that the clinic has suffered no injury from the parenting and pregnancy provision.
“Yes, but it destroys the unity of the budget bill,” she said. “All three should be severed, but if not, we have clearly shown injury under the other two.”
It is unclear when the Ohio Supreme Court will make a decision in the case.
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