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Legal Uncertainties Remain Following Passage of Issue 1 in Ohio

Client Alert
December 11, 2023

In the November 2023 General Election, Ohio voters passed Issue 1 which, among other things, “[e]stablish[es] in the Constitution of the State of Ohio  an individual right to one’s own reproductive medical treatment, including but not limited  to abortion”. Despite passage of Issue 1, questions persist about how its codification on December 7 affects previously passed legislation restricting abortion and related pending court cases.

On the day the ballot measure became effective, Ohio Attorney General Dave Yost said that Ohio’s new constitutional right to reproductive decisions overrides the state’s ban on most abortions (the previously passed “Heartbeat Law"), but that the state’s appeal of a lower court’s decision to pause enforcement of the Heartbeat Law should go forward.

On September 2, 2022, in Preterm-Cleveland v. Yost, five groups, including the American Civil Liberty Union (ACLU) of Ohio, filed a lawsuit in Hamilton County Common Pleas Court seeking to block enforcement of the Heartbeat Law. The Hamilton County Common Pleas Court held that abortion is a “fundamental right” and that the Heartbeat Law violates that right. The court issued a preliminary injunction in October 2022, preventing enforcement of the Heartbeat Law.

In response, Ohio Attorney General Yost appealed the preliminary injunction to the First District Court of Appeals, which ultimately dismissed the case. Yost appealed to the Ohio Supreme Court, asking the court to rule on two important issues:

  1. Can preliminary injunctions that restrict state law be appealed by the state?
  2. Because Ohio courts lack jurisdiction to issue injunctive relief to parties who lack standing, can third parties (e.g., abortion clinics) challenge state laws (in this case, the Heartbeat Law)?

Following passage of Issue 1, the Ohio Supreme Court asked both sides to file new briefs that address the impact of Issue 1 on the case pending before it. In Attorney General Yost’s brief, he argued that the law itself is not at issue, but rather the two procedural issues described above. In his brief, Yost indicated that, substantively, Issue 1 overrides the Heartbeat Law.

In its brief submitted on behalf of the Appellees, the ACLU of Ohio argues that Issue 1 renders the Heartbeat Law unenforceable and that Yost’s prior appeal of the 2022 preliminary injunction of that law is moot, rendering the case unable to proceed. According to the brief, because the State cannot be harmed by being prevented from enforcing a law that Attorney General Yost admits violates the Ohio Constitution, there is no harm for the State to allege.

While the Supreme Court of Ohio considers both briefs, many providers of reproductive health care in Ohio are waiting on concrete legal guidance before they stop following Ohio's current abortion restrictions, including requiring patients to wait 24 hours after an initial appointment to have an abortion. The Supreme Court of Ohio’s ruling on the procedural issues stemming from Issue 1 should clarify the new legal boundaries for providers.

If you have questions about the content of this Client Alert, or the passage of Issue 1, please feel free to reach out to BMD Member Daphne Kackloudis at dlkackloudis@bmdllc.com or BMD Partner Ashley Watson at abwatson@bmdllc.com.

Issue 1AbortionReproductive Health CareAshley WatsonDaphne Kackloudis
Client Alert

The Masks Are Back: New OSHA Regulations for Healthcare Employers

June 11, 2021Employment Law After Hours is back with a News Break Episode. Yesterday, OSHA published new rules for healthcare facilities, including hospitals, home health employers, nursing homes, ambulance companies, and assisted living facilities. These new rules are very cumbersome, requiring mask wearing for all employees, even those that are vaccinated. The only exception is for fully vaccinated employees (2 weeks post final dose) who are in a "well-defined" area where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.Client Alert

New OSHA Guidance for Workplaces Not Covered by the Healthcare Emergency Temporary Standard

June 11, 2021On June 10, 2021, OSHA issued an Emergency Temporary Standard (ETS) for occupational exposure to COVID-19, but it applies only to healthcare and healthcare support service workers. For a detailed summary of the ETS applicable to the healthcare industry, please visit https://youtu.be/vPyXmKwOzsk. All employers not subject to the ETS should review OSHA’s contemporaneously released, updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The new Guidance essentially leaves intact OSHA’s earlier guidance, but only for unvaccinated and otherwise at-risk workers (“at-risk” meaning vaccinated or unvaccinated workers with immunocompromising conditions). For fully vaccinated workers, OSHA defers to CDC Guidance for Fully Vaccinated People, which advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, or local laws or individual business policies.Client Alert

Employer Liability for COVID-19 Vaccine Side Effects

June 9, 2021As employers encourage or require employees to obtain a COVID-19 vaccine, they should be aware of OSHA recording obligations and potential workers’ compensation liability. Though OSHA has yet to revise its COVID-19 guidance in response to the latest CDC recommendations, OSHA has revised its position regarding the recording of injury or illness resulting from the vaccine. Until now, OSHA required an employer to record an adverse reaction when the vaccine was required for employees and the injury or illness otherwise met the recording criteria (work-related, a new case, and meets one or more of the general recording criteria). OSHA has reversed course and announced that it will not require recording adverse reactions until at least May 2022, irrespective of whether the employer requires the vaccine as a condition of employment. In its revised COVID-19 FAQs, OSHA states:Client Alert

The New Rule 1.510 - Radical Change for Summary Judgement Procedure in Florida

June 8, 2021In civil litigation, where both sides participate actively, trial is usually required at the end of a long, expensive case to determine a winner and a loser. In federal and most state courts, however, there are a few procedural shortcuts by which parties can seek to prevail in advance of trial, saving time, money and annoyance. The most common of these is the “motion for summary judgment”: a request to the court by one side for judgment before trial, generally on the basis that the evidence available reflects that a win for that party is legally inevitable and thus required. Effective May 1, 2021, summary judgment procedure in Florida has radically changed.Client Alert

Vacating, Modifying or Correcting an Arbitration Award Under R.C. 2711.13: Three-Month Limitation Maximum; Not Guaranteed Amount of Time

June 8, 2021In a recent decision, the Supreme Court of Ohio held that neither R.C. 2711.09 nor R.C. 2711.13 requires a court to wait three months after an arbitration award is issued before confirming the award. R.C. 2711.13 provides that “after an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order vacating, modifying, or correcting the award.” Any such motion to vacate, modify, or correct an award “must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest.” In BST Ohio Corporation et al. v. Wolgang, the Court held the three-month period set forth in R.C. 2711.13 is not a guaranteed time period in which to file a motion to vacate, modify, or correct an arbitration award. 2021-Ohio-1785.
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