Planned Parenthood SW Ohio Region v. Ohio Dept. of Health

2026 Ohio 639

• Court: Ohio Court of Appeals
• Decided: February 25, 2026
• Docket: C-250163
• Status: Published

Opinion

[Cite as Planned Parenthood SW Ohio Region v. Ohio Dept. of Health, 2026-Ohio-639.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

PLANNED PARENTHOOD : APPEAL NO. C-250163 SOUTHWEST OHIO REGION, TRIAL NO. A-2100870 : SHARON LINER, M.D., : PLANNED PARENTHOOD OF JUDGMENT ENTRY GREATER OHIO, :

PRETERM-CLEVELAND, :

WOMEN’S MED GROUP : PROFESSIONAL CORPORATION, : and : NORTHEAST OHIO WOMEN’S CENTER LLC, :

Plaintiffs-Appellees, :

vs. :

OHIO DEPARTMENT OF HEALTH, :

BRUCE VANDERHOFF, :

and :

STATE MEDICAL BOARD OF OHIO, :

Defendants-Appellants, :

MELISSA POWERS, :

EMILY SMART WOERNER, :

G. GARY TYACK, :

ZACH KLEIN, : OHIO FIRST DISTRICT COURT OF APPEALS

MICHAEL C. O’MALLEY : MARK GRIFFIN, : MARLENE RIDENOUR, : MATHIAS HECK, JR., : THEODORE A. HAMER, : ELLIOT KOLKOVICH, : and : JANET CIOTOLA, : Defendants. :

This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed as modified. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 2/25/2026 per order of the court.

By:_______________________ Administrative Judge [Cite as Planned Parenthood SW Ohio Region v. Ohio Dept. of Health, 2026-Ohio-639.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

PLANNED PARENTHOOD : APPEAL NO. C-250163 SOUTHWEST OHIO REGION, TRIAL NO. A-2100870 : SHARON LINER, M.D., : PLANNED PARENTHOOD OF GREATER OHIO, : OPINION

WOMEN’S MED GROUP : PROFESSIONAL CORPORATION, : and : NORTHEAST OHIO WOMEN’S CENTER LLC, :

MICHAEL C. O’MALLEY :

MARK GRIFFIN, :

MARLENE RIDENOUR, :

MATHIAS HECK, JR., :

THEODORE A. HAMER, :

ELLIOT KOLKOVICH, :

JANET CIOTOLA, :

Defendants. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: February 25, 2026

Camila Vega, Hannah Swanson, The Cochran Firm and Fanon A. Rucker, for Plaintiffs-Appellees Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, and Sharon Liner, M.D.,

American Civil Liberties Union of Ohio Foundation, Inc., B. Jessie Hill, Freda J. Levenson and Rebecca Kendis, and American Civil Liberties Union Foundation, Jennifer Dalven, Chelsea Tejada and Rachel Reeves, for Plaintiffs-Appellees Preterm- Cleveland, Women’s Med Group Professional Corporation, and Northeast Ohio Women’s Center, LLC,

Dave Yost, Ohio Attorney General, and Amanda L. Narog, Assistant Ohio Attorney General, for Defendants-Appellants. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Presiding Judge.

{¶1} Defendants-appellants the Ohio Department of Health, health

department director Bruce Vanderhoff, and the State Medical Board of Ohio

(collectively the “State”) appeal the trial court’s judgment declaring 2020 Am.S.B. No.

27 (“S.B. 27”) to be unconstitutional under Article I, Section 22 of the Ohio

Constitution (“the Reproductive Freedom Amendment”). S.B. 27 mandates that fetal

tissue from procedural abortions be disposed of by interment or cremation. The bill

also imposes certain financial, record-keeping, and notification requirements as to the

disposition of fetal tissue on abortion facilities and amends the definition of the term

“probable gestational age.” Ruling on a motion for a judgment on the pleadings filed

by plaintiffs-appellees Planned Parenthood Southwest Ohio Region, Dr. Sharon Liner,

Planned Parenthood of Greater Ohio, Preterm-Cleveland, Women’s Med Group

Professional Corporation, and Northeast Ohio Women’s Center LLC (collectively “the

providers”1), the trial court concluded that S.B. 27’s dispositional mandate

discriminates against the right to reproductive freedom by requiring differential

treatment for fetal tissue that results from a procedural abortion. It then determined

that the remainder of S.B. 27 could not be severed from this unconstitutional provision

and enjoined enforcement of the entire bill.

{¶2} The State raises two narrow assignments of error on appeal. First, it

contends that the Reproductive Freedom Amendment does not apply to conduct that

occurs after a completed abortion—in other words, the disposition of fetal tissue by an

abortion facility after the procedure has concluded. As we explain in this opinion, we

reject this proposition. The Amendment’s plain text prohibits any State action that

1 We use the term “providers” because plaintiffs-appellees describe themselves in their complaint

as “providers of procedural abortions in Ohio.”

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burdens, penalizes, or discriminates against the right to an abortion, regardless of

what stage of the abortion process the State action covers. See Ohio Const., art. I, §

22(B) (“The State shall not, directly or indirectly, burden, penalize . . . or discriminate

against . . . [a]n individual’s voluntary exercise of th[e] right [to an abortion].”). We

accordingly decline the State’s invitation to read into the Reproductive Freedom

Amendment a temporal limitation that does not exist. And because the State did not

assign any other aspect of the trial court’s holding that the dispositional requirement

of S.B. 27 is unconstitutional, we limit our review of that determination to this narrow

issue.

{¶3} Second, the State alleges that, having found the fetal tissue dispositional

requirement unconstitutional, the trial court erred in refusing to sever that portion of

the law from the remainder of S.B. 27. It argues that parts of the bill—like the change

in the definition of “probable gestational age” and the introduction of new record-

keeping requirements—are enforceable outside of the interment and cremation

provisions. We agree with the State, at least in part. A portion of S.B. 27 amends

existing abortion regulations that are wholly unrelated to the disposition of fetal tissue.

Because these provisions are capable of independent meaning, they are separately

enforceable and must be severed. But the lion’s share of S.B. 27 imposes obligations

on abortion providers that flow directly from the fetal tissue provision, and we concur

with the trial court’s assessment that these sections cannot be severed. We therefore

uphold the majority of the trial court’s injunction, making only slight modifications to

its judgment to excise the severable portions of S.B. 27.

Background

{¶4} We begin with a summary of S.B. 27 itself. Adopted by the General

Assembly in 2020, the bill amended three existing statutes—R.C. 2317.56, 3701.341,

6 OHIO FIRST DISTRICT COURT OF APPEALS

and 3701.79—and enacted a number of new ones. Its stated purpose was “to impose

requirements on the final disposition of fetal remains from surgical abortions.”

{¶5} In that regard, S.B. 27 enacted a new statute, R.C. 3726.02(A), which

provides that “[f]inal disposition of fetal remains from a surgical abortion at an

abortion facility shall be by cremation or interment.” We refer to this mandate as the

“dispositional requirement.” Also among the statutes created by S.B. 27 was R.C.

3726.01, which defines “cremation,” “interment,” “abortion facility,” and other key

terms pertaining to R.C. 3726.02(A)’s dispositional requirement. S.B. 27 then enacted

a comprehensive scheme of new regulations governing the disposition of fetal tissue.

These provisions include:

(1) R.C. 3726.03, which creates the right of a pregnant person who seeks an

abortion to select between cremation and interment as the method of

disposition for fetal tissue;

(2) R.C. 3726.04, which specifies the manner in which a pregnant person may

register the selection between dispositional methods (in writing), how

disposition is selected when a minor obtains a surgical abortion, and the

ability of an abortion facility to select the dispositional method where a

pregnant person does not;

(3) R.C. 3726.05, which prohibits the release of fetal tissue by abortion facilities

prior to the selection of a dispositional method;

(4) R.C. 3726.09, which requires that abortion facilities fund the disposition of

fetal tissue, subject to one narrow exception;

(5) R.C. 3726.10 and 3726.11, which mandate that abortion facilities document

the manner and date of disposition;

(6) R.C. 3726.12 and 3726.13, which require that abortion facilities maintain

7 OHIO FIRST DISTRICT COURT OF APPEALS

certain policies and lists related to the disposition of fetal tissue;

(7) R.C. 3726.14, which directs the health director to adopt rules governing the

manner in which an abortion facility notifies a pregnant person of the right

to select a manner of disposition and records the person’s selection within

90 days of the bill’s effective date;

(8) R.C. 3726.15 and 3726.95, which exempt pregnant persons from liability for

noncompliance with S.B. 27 provided the person complies with certain

requirements;

(9) R.C. 3726.16, which indicates that conflicting provisions of the Revised

Code do not apply to the disposition of fetal tissue;

(10) R.C. 3726.99, which imposes criminal liability on abortion facilities for

violating the requirements of S.B. 27;

(11) R.C. 4717.271, which prohibits certain activities by crematory facilities with

regard to fetal tissue from surgical abortions; and

(12) R.C. 2317.56(B)(4), which prohibits surgical abortions in the absence of

notification to the pregnant person of the right to select a method of

disposition and receipt of the person’s selection in writing, except in cases

of medical necessity or medical emergency.

{¶6} Read together, these provisions give meaning to S.B. 27’s dispositional

requirement. In relevant part, S.B. 27 requires abortion providers to provide a

notification form to patients listing the two dispositional options, and the providers

must document their patient’s selection on a consent form. If the patient is a minor,

S.B. 27 requires parental consent to the disposition determination or a judicial bypass

order. Abortion providers must facilitate and pay for the cremation or interment of

fetal tissue, maintain a list of facilities willing to dispose of the tissue by burial or

8 OHIO FIRST DISTRICT COURT OF APPEALS

cremation, and store the tissue until disposition. Abortion facilities and physicians

who do not comply with S.B. 27’s requirements face criminal penalties, financial

penalties and fines, civil damages, and disciplinary action, including license

revocation.

{¶7} In addition to enacting this new statutory regime, S.B. 27 also amended

existing abortion regulations in the Revised Code. Notably, it updated the definition

of the term “probable gestational age” in R.C. 2317.56(A)(3) to include the words

“zygote” and “blastocyte.”2 This was significant because R.C. 2317.56(B) specifies

when an abortion may be lawfully performed, and the assessment of “probable

gestational age” is a component of this regulation. S.B. 27 also amended R.C.

3701.79(C), which requires a physician to create an individual abortion report for each

procedure, to include abortions involving these organisms. The bill similarly amended

R.C. 3701.79(I) to require health department data on abortions to be reported

inclusive of “zygote[s]” and “blastocyte[s].” None of these provisions explicitly cross-

reference or otherwise relate to the dispositional requirement.

{¶8} S.B. 27 took effect on April 6, 2021 and was promptly challenged by the

providers in court.3 Their original complaint sought to enjoin S.B. 27 in its entirety,

both preliminarily and permanently. The providers also sought a declaration that the

bill violated the Ohio Constitution.

{¶9} In April 2021, and again in January 2022, the trial court preliminarily

enjoined the enforcement of S.B. 27. But then, in June 2022, the United States

Supreme Court decided Dobbs v. Jackson Women’s Health Organization, 597 U.S.

2 The term “probable gestational age” had previously been defined only by reference to the terms

“embryo” and “fetus.” S.B. 27 therefore expanded the “probable gestational age” definition to include a wider range of biological organisms in its coverage. 3 In fact, the providers preemptively filed this action in March 2021, before the bill became law.

9 OHIO FIRST DISTRICT COURT OF APPEALS

215, 293, 300 (2022), in which it reversed Roe v. Wade, 410 U.S. 113 (1973), and

overturned the federal constitutional protection for abortion. In its place, Dobbs

returned the question of reproductive freedom to the states, allowing each state to

determine for itself whether to prohibit, regulate, or protect access to abortion. Dobbs

at 302.

{¶10} In response, on November 7, 2023, the Ohio voters approved the

Reproductive Freedom Amendment, which enshrines protection for abortion and

other reproductive decisions into the Ohio Constitution. The Amendment contains

four subsections—(A), (B), (C), and (D). The first two subsections—(A) and (B)—are

particularly relevant to this appeal. They read:

(A) Every individual has a right to make and carry out one’s own

reproductive decisions, including but not limited to decisions on:

1. contraception;

2. fertility treatment;

3. continuing one’s own pregnancy;

4. miscarriage care; and

5. abortion.

(B) The State shall not, directly or indirectly, burden, penalize,

prohibit, interfere with, or discriminate against either:

1. An individual’s voluntary exercise of this right or

2. A person or entity that assists an individual exercising

this right,

unless the State demonstrates that it is using the least restrictive

means to advance the individual’s health in accordance with

widely accepted and evidence-based standards of care.

10 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio Const., art. I, § 22.

{¶11} As written, subsection (A) of the Reproductive Freedom Amendment

sets forth the affirmative right to an abortion for all individuals. We refer to this

subsection as the “abortion guarantee.” In contrast, subsection (B) of the Amendment

constrains governmental regulation of the right to an abortion, as well as actions by

the State that single out abortion providers for negative or disparate treatment. We

refer to this subsection as the “State action restriction.”

{¶12} Following the enactment of the Reproductive Freedom Amendment, the

providers amended their complaint to challenge S.B. 27 under this new provision.

They again challenged S.B. 27 in its entirety, asserting five causes of action: (1) the

right to reproductive freedom under the Reproductive Freedom Amendment, (2)

substantive due process under Article I, Sections 1, 16, and 20 of the Ohio Constitution,

(3) equal protection under Article I, Section 2 of the Ohio Constitution, (4) vagueness,

and (5) declaratory judgment. They sought a judgment that S.B. 27 violates the Ohio

Constitution and a permanent injunction against its enforcement, among other forms

of relief. The State answered the amended complaint, denying the providers’ claims.

{¶13} Shortly thereafter, the providers filed a Civ.R. 12(C) motion for a

judgment on the pleadings. The motion was not specific as to which claim(s) formed

the basis of the providers’ request. But in substance it argued that S.B. 27’s

dispositional requirement violated the Reproductive Freedom Amendment by

discriminating against the right to an abortion. In this regard, the providers

contended that the disposition of fetal tissue from procedural abortions is subject to

heightened regulations not otherwise applicable to the disposition of fetal remains. To

make this point, the providers argued that, prior to S.B. 27, Ohio law treated

embryonic and fetal tissue resulting from procedural abortions the same way it treated

11 OHIO FIRST DISTRICT COURT OF APPEALS

the tissue retrieved from any other medical procedure—the tissue could be disposed

by incineration, autoclaving, or chemical treatment. After S.B. 27, however, only the

embryonic and fetal tissue from an abortion must be cremated or interred.

{¶14} This argument was directed to the providers’ claims for declaratory

judgment and under the Reproductive Freedom Amendment and did not directly

advance the substantive due process, equal protection, and vagueness claims raised in

the providers’ amended complaint. Nonetheless, the providers sought to obtain a

complete judgment in their favor without reference to any specific cause(s) of action.

{¶15} The State opposed the providers’ motion for a judgment on the

pleadings. It raised three primary arguments. First, it contended that S.B. 27’s

dispositional requirement solely regulates conduct occurring after an abortion and

therefore cannot be interpreted to restrict or burden an individual’s right to an

abortion under the Reproductive Freedom Amendment. Next, it argued that, even if

S.B. 27 affects an individual’s right to an abortion, the providers lacked standing to

assert that right on behalf of their patients. Lastly, the State argued that the trial court

should sever the dispositional requirement from the remainder of S.B. 27 should it

find that provision to be unconstitutional. The providers did not reply to the State’s

opposition.

{¶16} One month later, the trial court granted the providers’ motion for a

judgment on the pleadings. In so doing, it first rejected the State’s standing argument,

finding that the Reproductive Freedom Amendment separately protects those, like the

providers, who assist another person in exercising the right to an abortion. Because

S.B. 27 imposes independent requirements on abortion providers, the trial court

concluded that the providers in this case were sufficiently burdened by the bill to

challenge its terms.

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} In addressing the constitutionality of the dispositional requirement, the

trial court reasoned that S.B. 27 discriminates against abortion providers because its

mandates only apply to fetal tissue from procedural abortions and not other forms of

fetal remains. Going a step further, it rejected the State’s argument that S.B. 27 only

applies to events after an abortion, observing that S.B. 27 regulates a significant

amount of preprocedure conduct—abortion providers must explain cremation and

interment decisions to patients, must establish relationships with crematories and

funeral homes, and must provide funds for cremation or burial, all before an abortion

takes place.

{¶18} Having determined that S.B. 27 violated the substantive guarantees of

the Reproductive Freedom Amendment, the trial court applied the scrutiny mandated

by Article I, Section 22(B) of the Ohio Constitution. That provision permits the State

to discriminate against the right to an abortion if it “demonstrates that it is using the

least restrictive means to advance the individual’s health in accordance with widely

accepted and evidence-based standards of care.” In the trial court’s view, the State

had not met—nor had it even attempted to meet—this burden; in fact, the State had

not even proffered any argument suggesting that S.B. 27 “advances [an] individual’s

health,” nor had it described the applicable standards of care that would apply or how

its regulations were the least restrictive means of meeting those objectives.

{¶19} As to severability, the trial court determined that all of the newly-

enacted and amended statutory provisions contained in S.B. 27 contemplated or cross-

referenced the dispositional requirement. As a result, the trial court reasoned that the

unconstitutional portion of S.B. 27 could not be severed from the remainder of the bill.

The trial court accordingly issued a permanent injunction barring the State from

enforcing S.B. 27 in its entirety.

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶20} The State appeals.

Analysis

{¶21} In two assignments of error, the State challenges the trial court’s

decision granting a judgment on the pleadings to the providers. It does so on limited

grounds. In its first assignment of error, the State attacks the trial court’s judgment

declaring the dispositional requirement unconstitutional based on its construction of

the Reproductive Freedom Amendment: “The trial court erred in declaring R.C.

3726.02 facially unconstitutional under Article I, Section 22 of the Ohio Constitution

because the Amendment does not apply to laws that regulate conduct that occurs after

a completed abortion.” And in its second assignment of error, the State challenges the

trial court’s severance analysis: “The trial court erred in finding every other statute in

the bill is not severable from R.C. 3726.02, even though one provision creates an

independent right for women having an abortion, the other provisions can stand alone,

and some have existed for years before being amended in the bill.”

{¶22} Neither of these assignments of error concerns the question of whether

S.B. 27, and the dispositional requirement in particular, discriminate against abortion

providers by treating them less favorably than other health care professionals. Nor do

they address the question of whether S.B. 27 satisfies the “least restrictive means”

standard set forth in Article I, Section 22 of the Ohio Constitution—a question the trial

court resolved in the providers’ favor. Nonetheless, the State’s brief argues in passing

that S.B. 27 is not discriminatory and that the providers should be held to a proof-

beyond-a-reasonable-doubt standard rather than the “least restrictive means” test

applicable to the State under the Ohio Constitution.

{¶23} We do not consider these arguments, as the State did not properly

present them. To preserve an issue for appellate review, a party must identify the issue

14 OHIO FIRST DISTRICT COURT OF APPEALS

in an assignment of error. See App.R. 16(A)(3) (requiring an appellant’s brief to

include “[a] statement of the assignments of error presented for review”).

“Assignments of error are vitally important because appellate courts determine each

appeal on its merits on the assignments of error set forth in the briefs under App.R.

16.” (Cleaned up.) JPMorgan Chase Bank, N.A. v. Cloyes, 2021-Ohio-3316, ¶ 10 (10th

Dist.); App.R. 12(A)(1)(b) (indicating that the appellate court “[d]etermine[s] the

appeal on its merits on the assignments of error set forth in the briefs”). As directed

by App.R. 12(A)(1)(b), we review and resolve assignments of error, not mere

arguments. Had the State wished for us to review the question of discrimination and

the standard and burden applicable to Reproductive Freedom Amendment claims, it

should have raised these questions in assignments of error. Having failed to do so, the

State waived these issues for our review. See, e.g., First State Bank v. K & B Indus.

Supply, 2020-Ohio-3376 ¶ 11 (4th Dist.).

A. The Reproductive Freedom Amendment

{¶24} Turning to the State’s first assignment of error, it argues that the trial

court erred in declaring the dispositional requirement in S.B. 27 unconstitutional

because the Reproductive Freedom Amendment does not apply to laws that regulate

conduct after a completed abortion. In other words, it contends that judgment on the

pleadings was improper under Civ.R. 12(C) because the Ohio Constitution did not

entitle the providers to relief.

{¶25} Civ.R. 12(C) provides that “[a]fter the pleadings are closed but within

such time as not to delay the trial, any party may move for judgment on the pleadings.”

A motion for a judgment on the pleadings under Civ.R. 12(C) is proper where “the

pleadings present[] only questions of law and may only be granted when no material

issues of fact exist and the moving party is entitled to judgment as a matter of law.”

15 OHIO FIRST DISTRICT COURT OF APPEALS

(Internal quotations omitted.) Wilhelms v. ProMedica Health Sys., 2023-Ohio-143, ¶

12 (6th Dist.). The pleadings and any reasonable inferences drawn from those

pleadings must be liberally construed in favor of the nonmoving party. Id. We review

a trial court’s ruling on a Civ.R. 12(C) motion for a judgment on the pleadings de novo.

Id.

{¶26} The State identifies no material dispute of fact that would preclude

judgment on the pleadings under Civ.R. 12(C). Rather, its assignment of error focuses

on a question of law—the timeframe and duration of constitutional protection for

abortion under the Reproductive Freedom Amendment. In that vein, the State asks

us to restrict the application of Article I, Section 22 of the Ohio Constitution to conduct

occurring before an abortion.

{¶27} To reach this conclusion, the State reads subsection (A) of the

Reproductive Freedom Amendment—the abortion guarantee—to limit the

prohibitions on State action contained in subsection (B)—the State action restriction.

It describes the right to “make and carry out one’s own reproductive decisions” as the

Amendment’s primary protection and argues that any limitation on the State’s

conduct imposed by the State action restriction necessarily ends once a reproductive

decision is effectuated. According to the State, because the abortion guarantee

concludes once a reproductive decision has been “carr[ied] out,” the State action

restriction does then too.

{¶28} Whether the State correctly interprets the scope of the State action

restriction is a question of first impression, as no appellate court to date has construed

the language of the Reproductive Freedom Amendment at all. But we do not view it

as a difficult question to resolve, as ordinary principles of statutory construction point

clearly away from the State’s preferred interpretation.

16 OHIO FIRST DISTRICT COURT OF APPEALS

{¶29} When constitutional text is ratified by the voters by direct vote, as the

Reproductive Freedom Amendment was, we consider how the text would have been

understood by the voters who adopted the amendment. State v. Yerkey, 2022-Ohio-

4298, ¶ 9. We do so to give effect to the intent of the people. Id., citing State ex rel.

Sylvania Home Tel. Co. v. Richards, 94 Ohio St. 287, 294 (1916). The starting point

of this inquiry is the plain language of the text, considering how the words and phrases

would be understood by the voters in their normal and ordinary usage. Id., citing State

v. Jackson, 2004-Ohio-3206, ¶ 14, and District of Columbia v. Heller, 554 U.S. 570,

576-577 (2008).

{¶30} In interpreting the plain meaning of the Ohio Constitution, courts

typically apply the same rules that govern the construction of statutes. City of

Centerville v. Knab, 2020-Ohio-5219, ¶ 22. Under these principles, words in the

Constitution are afforded their everyday meaning, which is often ascertained by

reference to the dictionary. Id. at ¶ 24. Though the words themselves are paramount,

discussion of the constitutional provision’s history and the circumstances of its

adoption may provide additional context. See Yerkey at ¶ 35 (DeWine, J., dissenting),

citing Knab at ¶ 22.

{¶31} Considering these standards, we conclude that the plain language of the

Reproductive Freedom Amendment constrains the State’s ability to regulate all phases

of an abortion, including conduct occurring after the procedure. We accordingly reject

the State’s argument that the Amendment does not apply to laws that regulate post-

abortion conduct. We reach this conclusion based on four critical observations about

the Amendment, its wording, and the context of its passage.

{¶32} Silence. First, the State action restriction contains no express

indication of when its protections start and stop and no direct timeline for its

17 OHIO FIRST DISTRICT COURT OF APPEALS

application. This silence is significant. Given the lack of any explicit instruction that

post-abortion conduct is excluded, we doubt the ordinary voter would have read such

a limitation into the provision.

{¶33} Wording. Second, even though it is silent as to timeline, the language

of the State action restriction plainly applies to the regulation of post-abortion

conduct. On the one hand, the abortion guarantee appears to cover only the period of

time during which reproductive decisions are being determined and effectuated. This

is what the terms “make” and “carry out” plainly mean. See Merriam-Webster Online,

https://www.merriam-webster.com/dictionary/make (accessed Jan. 16, 2026)

[https://perma.cc/PJ9T-PNUE] (defining “make” as “to bring into being by forming,

shaping, or altering material”); Merriam-Webster Online, https://www.merriam-

webster.com/dictionary/carryout (accessed Jan. 16, 2026) [https://perma.cc/B592-

27AF] (defining “carry out” as “to continue to an end or stopping point”).

{¶34} But the State action restriction is not so confined. To the contrary, the

clear language of that provision prohibits government action that, “directly or

indirectly, burden[s], penalize[s], prohibit[s], interfere[s] with, or discriminate[s]

against” either the exercise of the right to an abortion or any person or entity who

assists with its exercise. Ohio Const., art. I, § 22(B). As contrasted with the “make”

and “carry out” language in the abortion guarantee, this wording squarely

contemplates regulation of post-abortion conduct.

{¶35} For one thing, the State action restriction bars the State from

“penaliz[ing]” those who assist in exercising the right to abortion. By definition,

conduct cannot be penalized until after it has occurred. See Merriam-Webster Online,

https://www.merriam-webster.com/dictionary/penalty (accessed Jan. 16, 2026)

[https://perma.cc/P6YP-KW9M] (defining “penalty” as “a disadvantage, loss, or

18 OHIO FIRST DISTRICT COURT OF APPEALS

hardship due to some action”). So too does the ban on “discriminat[ion]” apply to

conduct occurring after a completed abortion. In its ordinary usage, the word

“discriminate” means “to unfairly treat a person or group differently from other people

or groups on a class or categorical basis (as race, religion, gender, or sexual

orientation).” Merriam-Webster Online, https://www.merriam-

webster.com/dictionary/discriminate (accessed Jan. 16, 2026)

[https://perma.cc/5VES-UHSU]. Because the State may be unaware of the status of

a person’s decision-making process, categorization based on the right to an abortion

will often occur on the basis that a procedure has been carried out—in other words,

after the abortion.

{¶36} But perhaps the most obvious indication of the State action restriction’s

meaning is in its use of the term “burden.” Under Article I, Section 22(B), the State

may not “directly or indirectly” burden the right to an abortion, either against the

individual seeking that form of reproductive care or against an abortion provider. As

a noun, the word “burden” means “something oppressive or worrisome.” Merriam-

Webster Online, https://www.merriam-webster.com/dictionary/burden (accessed

Jan. 16, 2026) [https://perma.cc/Y3XC-P9RP]. As a verb, it means to “load” or

“oppress.” Id. Thus, read literally, this provision broadly constrains State authority,

as it prohibits the State from acting oppressively in the context of abortion. There is

no time limitation in the plain meaning of this word.

{¶37} To illustrate the point, consider the following. Assume the State adopts

a law requiring all individuals who undergo an abortion to pay a $50 million tax 30

days after the procedure. Failure to pay is a first-degree felony punishable by life in

prison. Although farfetched, the law plainly burdens the right to an abortion. But

under the State’s construction, the law would not violate the Reproductive Freedom

19 OHIO FIRST DISTRICT COURT OF APPEALS

Amendment because it regulates conduct occurring after an abortion. We see nothing

in the text, meaning, or understanding of the Amendment that would support such an

absurd result. See R.C. 1.47(C) (requiring courts to presume “just and reasonable

result[s]” in interpreting laws, not absurd ones).

{¶38} Structure. Third, the structure of a law, or how its terms are used in

context, can also support its plain meaning. See, e.g., Gabbard v. Madison Local

School Dist. Bd. of Ed., 2021-Ohio-2067, ¶ 17. Reading the words “burden,”

“penalize,” and “discriminate” in the context of the entire State action restriction

makes their application to conduct occurring before, during, and after an abortion all

the more clear.

{¶39} As we have noted, the State action restriction significantly constrains

the State’s ability to regulate in the field of abortion. But it is not absolute. By the

clear terms of Article I, Section 22(B), the State retains the authority to enact abortion-

related statutes so long as it can demonstrate that doing so is “the least restrictive

means to advance the individual’s health in accordance with widely accepted and

evidence-based standards of care.” The State may also ban abortion entirely once a

fetus is viable, so long as there are exceptions for physician-documented threats to a

pregnant person’s life or health. Ohio Const., art. I, § 22(B).

{¶40} These two exceptions carve out significant space for the State to operate.

And the voters approved the Amendment with the specific understanding that the

State had some leeway to regulate and even ban abortion going forward. This makes

the Amendment’s silence as to a temporal limitation all the more striking. If the

Amendment was intended to explicitly carve out a role for the State in regulating post-

abortion conduct, one would expect that the exceptions in Article I, Section 22(B)

would say that. They do not.

20 OHIO FIRST DISTRICT COURT OF APPEALS

{¶41} History and Purpose. Fourth, the plain meaning of Article I, Section

22(B), considered in its constitutional context, is sufficient to resolve the State’s

assignment of error in the negative. But to the extent we need to check our work, the

history and purpose of the Reproductive Freedom Amendment are consistent with the

conclusion we reach about its scope. We consider this backdrop solely as a secondary

source of support for our conclusion, as the words of the Constitution remain

paramount to our analysis. See Yerkey, 2022-Ohio-4298, at ¶ 35 (DeWine, J.,

dissenting), citing Knab, 2020-Ohio-5219, at ¶ 22.

{¶42} Ohio voters adopted the Amendment the year after the Supreme Court

removed the federal constitutional protection for abortion and returned the issue of

abortion regulation to the states. See Dobbs, 597 U.S. at 300, 302. Its title—“The

Right to Reproductive Freedom with Protections for Health and Safety”—describes its

core purpose—to protect reproductive decisions and activities from State interference

absent a real health and safety concern.

{¶43} This context suggests that the voters of Ohio intended to create a

separate, independent state constitutional basis for protecting abortion and abortion

providers from State intervention, other than that explicitly allowed by the

Amendment.4 In this regard, the Reproductive Freedom Amendment fills the

constitutional void left by Dobbs. Nothing in this history or the rationale for the

Amendment suggests that the voters intended to excise post-abortion conduct from

its protections. Rather, the fact that Ohio voters mobilized quickly to counteract a

decision of the United States Supreme Court sends a strong message of their desire to

4 The Amendment permits the State to regulate abortion if it demonstrates that “it is using the least

restrictive means to advance the individual’s health in accordance with widely accepted and evidence-based standards of care.” Ohio Const., art. I, § 22(B). The State may also prohibit abortion after the point of fetal viability, with exceptions for the life and health of the pregnant person. Id.

21 OHIO FIRST DISTRICT COURT OF APPEALS

protect reproductive rights.

{¶44} Ohio voters said what they meant. The State may not burden, penalize,

or discriminate against those who have an abortion and those who assist them in

obtaining one. This does not mean that all State regulation of abortion runs afoul of

the Reproductive Freedom Amendment, as the Amendment itself specifies conditions

under which the State may intervene. But the State’s proposed interpretation—which

excludes regulations of post-abortion conduct from those conditions—is incorrect. We

accordingly construe Article I, Section 22(B) of the Ohio Constitution to apply to

legislation that regulates conduct occurring before, during, and after a procedural

abortion. The mere fact that S.B. 27 regulates conduct occurring after an abortion does

not remove it from the scope of the Reproductive Freedom Amendment. We overrule

the State’s first assignment of error on this basis.

B. Severability

{¶45} The State’s second assignment of error argues that the trial court erred

in failing to sever the dispositional requirement from the remainder of S.B. 27. From

the State’s perspective, once the trial court declared R.C. 3726.02(A) invalid, it should

have simply enjoined that provision and left the remainder of S.B. 27 intact.

{¶46} The question of severability is a legal one that we review de novo. See,

e.g., Home Builders Assn. of Dayton v. City of Lebanon, 2006-Ohio-595, ¶ 34 (12th

Dist.) (evaluating severance under de novo standard of review).

{¶47} A court that declares a portion of an Ohio law to be unconstitutional

must determine, pursuant to R.C. 1.50, whether any other provisions or related

sections of the law can be given effect without the invalid provision. See, e.g., State ex

rel. Whitehead v. Sandusky Cty. Bd. of Commrs., 2012-Ohio-4837, ¶ 28. In carrying

out this directive, courts ask three questions to determine when severance is

22 OHIO FIRST DISTRICT COURT OF APPEALS

appropriate:

(1) Are the constitutional and unconstitutional parts capable of

separation so that each may be read and may stand by itself?

(2) Is the unconstitutional part so connected with the general scope

of the whole as to make it impossible to give effect to the

apparent intention of the Legislature if the clause or part is

stricken out?

(3) Is the insertion of words or terms necessary in order to separate

the constitutional part from the unconstitutional part, and to

give effect to the former only?

State ex rel. Sunset Estate Properties, LLC v. Village of Lodi, 2015-Ohio-790, ¶ 17,

citing Geiger v. Geiger, 117 Ohio St. 451, 466 (1927). The statute can only be severed

when the answer to the first question is yes, and the answers to the second and third

questions are no. State v. Noling, 2016-Ohio-8252, ¶ 35.

{¶48} With regard to severance, S.B. 27 enacted two types of regulations that

might be severed from the dispositional requirement—those that cross-reference the

dispositional requirement in some manner5 and those that amend preexisting statutes

or definitions without regard to the disposal of fetal tissue.6 The State contends that

both groups are capable of independent enforcement and that the trial court went too

5 As previously described, these include the portions of S.B. 27 that enact R.C. 3726.01 (definitions),

R.C. 3726.03 (right to select method of disposition), R.C. 3726.04 (manner of selecting method of disposition), R.C. 3726.05 (release prohibited prior to dispositional method selection), R.C. 3726.09 (dispositional funding requirement), R.C. 3726.10 (disposition documentation), R.C. 3726.11 (disposition documentation), R.C. 3726.12 (disposition policies), R.C. 3726.13 (disposition lists), R.C. 3726.14 (health director rules governing disposition), R.C. 3726.15 (noncompliance), R.C. 3726.95 (noncompliance), R.C. 3726.16 (conflicting provisions), R.C. 3726.99 (criminal liability), R.C. 4717.271 (crematory facilities), and R.C. 2317.56(B)(4) (abortion regulation). 6 There are only three provisions of this type in S.B. 27: (1) R.C. 2317.56(A)(3) (amending “probable

gestational age” definition), (2) R.C. 3701.79(C) (requiring an abortion report), and (3) R.C. 3701.79(I) (requiring health department data).

23 OHIO FIRST DISTRICT COURT OF APPEALS

far in enjoining them. We disagree, at least as to the portions of S.B. 27 that directly

give meaning to the dispositional requirement.

{¶49} We begin with the first severance question: are the constitutional and

unconstitutional parts capable of separation so that each may be read and may stand

by itself? This standard requires us to consider whether the remaining portions of the

law are capable of independent meaning after the unconstitutional provision is

excised—in other words, can we remove part of the statute “by running a blue pencil

through it.” Emler v. Ferne, 23 Ohio App. 218, 221 (1st Dist. 1926). In answering this

question, courts consider whether any of the remaining provisions are reliant upon the

unconstitutional provision for their meaning. See, e.g., City of Cleveland v. State,

2014-Ohio-86, ¶ 20.

{¶50} With regard to the group of provisions in S.B. 27 that incorporate and

reference the dispositional requirement, these portions of the bill are not capable of

standing independently. To the contrary, these provisions define the process by which

the dispositional requirement will be carried out, regulated, and enforced. They

impose myriad regulations on patients and providers with regard to the disposition of

fetal tissue, including how a patient’s choice between the two mandated dispositional

methods is recorded, how crematory facilities are to handle fetal tissue, what records

abortion providers must maintain to comply with the dispositional requirement, and

who may be punished with a crime for violating S.B. 27’s dispositional mandates.

{¶51} Without the dispositional requirement, these provisions become

nonsensical, as they all relate to and carry out S.B. 27’s central requirement that fetal

tissue be disposed of by only interment or cremation. What meaning, for example,

does a form recording a pregnant person’s dispositional selection have when the law

no longer requires that choice? To what effect is it to create a crime for violating the

24 OHIO FIRST DISTRICT COURT OF APPEALS

dispositional requirement when there is actually no such thing?

{¶52} For the provisions of S.B. 27 that incorporate the dispositional

requirement, we accordingly answer the first severance question: “No.” These

sections of the bill are not capable of being read separately from the unconstitutional

portion of the law. And for that reason, these provisions cannot be severed. See

Noling, 2016-Ohio-8252, at ¶ 35 (noting that a “no” answer to the first severance

question will preclude severance).

{¶53} But the landscape is different with regard to the three provisions in S.B.

27 that merely amend preexisting legal definitions or requirements without reference

to the mandate that fetal tissue be cremated or interred. In three places, S.B. 27 adds

the words “zygote” and “blastocyte” to regulations that were already on the books. See

S.B. 27 (amending R.C. 2317.56(A)(3), 3701.79(C), and 3701.79(I)). These changes

occur in portions of the bill that do not discuss, define, or otherwise relate to the

dispositional requirement. And in that regard, the answer to the first severance

question for these provisions is “Yes.” We can insert these words into current statutes

and read them independently.

{¶54} Doing so does not make it impossible to give effect or meaning to the

Legislature’s intent, as best we understand it. The intent of S.B. 27, as a whole, is

clearly to require interment or cremation of fetal tissue that results from abortion. In

fact, the bill says as much. See S.B. 27 (indicating that the bill amends and enacts

provisions of the Revised Code “to impose requirements on the final disposition of

fetal remains from surgical abortions”). But, because the amendments to R.C.

2317.56(A)(3), 3701.79(C), and 3701.79(I) do not reference the dispositional

requirement and instead pertain to unrelated abortion regulations, we can discern that

the Legislature may have had a different idea in mind with respect to these changes.

25 OHIO FIRST DISTRICT COURT OF APPEALS

R.C. 2317.56(A)(3) relates to the definition of “probable gestational age.” R.C.

3701.79(C) relates to the individual abortion report that is required each time a

provider performs an abortion. R.C. 3701.79(I) relates to the collection of data by the

health department. The inclusion of the words “zygote” and “blastocyte” in these

regulations expand the type of biological organisms subject to these statutory

subsections—a wholly separate objective from mandating the method of tissue

disposition. Severing these provisions from the dispositional requirement gives effect

to the Legislature’s distinct intent in adopting them.7

{¶55} Finally, we need not add any words to give these linguistic amendments

effect. At least on the record before us, these amendments appear to be mere

terminology updates. Because each amended statute already contained a list of

biological organisms and S.B. 27 merely adds the words “zygote” and “blastocyte” to

the list, we do not need to reword the bill as a result of severance. These provisions

stand neatly on their own.

{¶56} With regard to S.B. 27’s amendments to R.C. 2317.56(A)(3), 3701.79(C),

and 3701.79(I), we accordingly answer the severance questions “Yes,” “No,” and “No.”

These provisions should therefore be severed from S.B. 27. See Noling, 2016-Ohio-

8252, at ¶ 35.

{¶57} We accordingly sustain the State’s second assignment of error in part

and overrule it in part. We modify the trial court’s judgment to sever the amendments

to R.C. 2317.56(A)(3), 3701.79(C), and 3701.79(I) from the injunction against the

enforcement of S.B. 27.

7 While there may be scientific, medical, or personal significance to the inclusion of the words

“zygote” and “blastocyte” in statutes about abortion, no party has briefed that significance to us, nor did the providers separately argue the inclusion of these terms as a basis for relief below.

26 OHIO FIRST DISTRICT COURT OF APPEALS

Conclusion

{¶58} In this appeal, we have answered the questions the State posited for us

to review, and no more. Consistent with the rules of party presentation and the role

of the court, our opinion resolves the two assignments of error the State presented,

while leaving for another day questions the parties did not preserve for our review.

See App.R. 12(A)(1)(b).

{¶59} In addressing the State’s two narrow assignments of error, we disagree

with the State that the Reproductive Freedom Amendment solely applies to conduct

occurring before and during an abortion. The plain language of the Amendment

applies to government action that affects all phases of reproductive decision-making,

including discrimination that might occur after a procedure. But we agree with the

State, in part, that the trial court went a step too far in enjoining the entirety of S.B. 27

because large swaths of it discriminate against abortion providers. We accordingly

modify the trial court’s judgment to excise the portions of S.B. 27 that amended R.C.

2317.56(A)(3) and 3701.79(C) and (I) from its permanent injunction and allow the

State to enforce those portions of the bill.

{¶60} We accordingly overrule the State’s first assignment of error. As to its

second assignment of error, we overrule it in part and sustain it in part. The trial

court’s judgment is affirmed as modified as explained in this opinion.

Judgment affirmed as modified.

ZAYAS and CROUSE, JJ., concur.