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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

Changes to FFCRA Paid Leave: Congress’ Revisions to Employment COVID-19 Leave Benefits Signals the Light is at the End of the Tunnel

December 28, 2020Late in the evening on December 27th, President Trump signed into law the government’s $900 billion COVID-19 relief package (the “Stimulus Bill”). Among other economic stimulus benefits, the Stimulus Bill contains the $600 stimulus checks that will be issued to eligible individuals as well as, relevantly, changes to the Families First Coronavirus Response Act (“FFCRA”). The FFCRA was implemented in April 2020 and provided benefits to individuals who missed work as a result of an actual or suspected COVID-19 illness or to care for a child when their school or childcare service was closed because of COVID-19. Importantly, the Stimulus Bill extends eligibility for employer payroll tax refunds for leave payments made to employees on or before March 31, 2021 under the FFCRA, signaling to the American people that Congress believes many of the employed public will be vaccinated by this time, the light at the end of the tunnel. However, the Stimulus Bill does contain a caveat that employers are no longer required to provide FFCRA leave benefits after December 31, 2020, but if they do, they will receive the payroll tax credits, up to the maximums provided in the FFCRA, for payments made prior to April 1, 2021. Below we provide a list of questions and answers we received to date following the passage of the Stimulus Bill. We expect the U.S. Department of Labor (“DOL”) to issue additional questions and answers as the Stimulus Bill is implemented, and we will update this Client Alert as these are received.Client Alert

Healthcare Speaker Programs: New OIG Alert

December 11, 2020In a rare Special Fraud Alert issued on November 16, 2020 (the “Alert”), the Office of Inspector General (“OIG”) urged companies who host speaker programs to reassess their programs in light of the “inherent risks” associated with these activities. The Alert reports that, in the last three years, drug and device companies have reported paying nearly $2 billion to health care professionals for speaker-related services.Client Alert

Value-Based Care Advances – CMS Issues New Final Rules for Stark and Anti-Kickback Statutes

December 11, 2020The Centers for Medicare & Medicaid Services (“CMS”) and the Department of Health and Human Services (“HHS”) Office of the Inspector General (“OIG”) issued two highly anticipated (and quite extensive) Final Rules to reform the Stark Law and Anti-Kickback Statute (“AKS”) regulations. The Final Rules generally take effect on January 19, 2021. The Final Rules include new safe harbors for the AKS and new exemptions to the Stark Law to allow for greater flexibility. According to the HHS, the goal of updating both laws is to make it easier for providers to engage in care coordination and value-based care programs without running afoul of the statutes. Please note that this client alert could not cover the full extent of the Final Rule changes so please contact your BMD Healthcare attorney with questions.Client Alert

Mandatory Filings Under CFIUS New Rules

December 11, 2020On September 15, 2020, the Committee on Foreign Investment in the United States (“CFIUS”) promulgated a final rule modifying its mandatory declaration requirements for certain foreign investment transactions involving “TID US businesses” (sensitive U.S. businesses dealing in critical technologies, critical infrastructure and sensitive personal data) dealing in “critical technologies” – i.e., U.S. businesses that produce, design, test, manufacture, fabricate, or develop one or more critical technologies. The new rule also makes amendments to the definition of the term “substantial interest” (used to determine whether a foreign government has a substantial interest in an entity). The final rule became effective on October 15, 2020.Client Alert

IRS Guidance on Employee Retention Credit

December 11, 2020The Employee Retention Credit created under Section 2302 of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act is a refundable tax credit against certain employment taxes equal to 50 percent of the qualified wages an eligible employer pays to employees after March 12, 2020, and before January 1, 2021. Since the adoption of the CARES Act, employers have expressed concern that if one employer acquires another employer that previously received a PPP loan, the acquirer’s entire aggregated group may no longer be eligible to claim the Employee Retention Credit.
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