By Danielle Nichole Smith

Law360 (March 30, 2020, 8:56 PM EDT) -- An Ohio federal judge on Monday temporarily blocked the state from applying a coronavirus-related restriction on nonessential surgeries to abortion procedures in a suit from providers challenging the state's prohibition on abortions after the detection of a fetal heartbeat.

U.S. District Judge Michael R. Barrett in his ruling granted a temporary restraining order to a group of reproductive health care clinics and physicians, finding that they were likely to prevail on their claim that the state's application of an order from the director of the Ohio Department of Health created an undue burden on abortion access in violation of the U.S. Constitution.

According to the decision, Ohio Department of Health Director Amy Acton issued an order on March 17 banning nonessential surgeries and procedures that used personal protective equipment in light of the coronavirus pandemic. A few days later, Ohio Attorney General Dave Yost sent letters to abortion providers directing them "to immediately stop performing non-essential and elective surgical abortions," the decision said.

"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[s] that its enforcement would, per se, inflict irreparable harm," Judge Barrett wrote.

The judge also, however, noted that there is a "novel intersection" between the legal precedent surrounding the 14th Amendment's "guarantee of the right to reproductive freedom" and the state's interest in protecting its citizens from COVID-19, the disease caused by the novel coronavirus that emerged at the end of 2019.

With that in mind, Judge Barrett directed the providers to determine whether a surgical abortion procedure could be safely postponed in order to maximize the health care resources available for fighting against the outbreak. Those that couldn't be postponed would be considered "legally essential to preserve a woman's right to constitutionally protected access to abortions," the judge said.

The providers asked for the temporary restraining order in their existing suit against the director of the Ohio Department of Health and Ohio attorney general, among others, challenging a state law prohibiting abortions after a fetal heartbeat is detected — something they said can occur as early as six weeks after a woman's last menstrual period.

Judge Barrett previously granted the providers a preliminary injunction against Ohio Senate Bill 23 in July. The temporary restraining order issued Monday will last for 14 days, and the judge held the providers' request for a preliminary injunction against the director's order in abeyance. The judge also granted the providers' request to file a supplementary complaint in the case adding a constitutional challenge to the application of Acton's order from the director of the Ohio Department of Health.

Jessie Hill, one of the attorneys representing the providers, said in a press release from the ACLU and Planned Parenthood on Monday that these are "unprecedented times of crisis" and that "everyone needs to ensure that people's health and safety is protected."

"This includes access to time-sensitive, essential abortion care," Hill said. "The Ohio government should not use this crisis as an excuse to target abortion clinics and attempt to deny Ohioans their abortion rights. We feel confident the law is on our side and we will do everything in our power to keep the clinics open."

Yost said in a statement Monday that "Ohio's overriding interest is to save lives in light of the COVID-19 public health emergency."

"That's the only reason for the health department's order," Yost said. "After consultation with the experts at the Ohio Department of Health, the state of Ohio will take the course of action that will most quickly achieve that goal — be it an emergency appeal, a trial on the preliminary injunction, a more specifically drawn order, or other remedy."

The providers are represented by B. Jessie Hill of the American Civil Liberties Union of Ohio Foundation, Elizabeth Watson, Rachel Reeves and Brigitte Amiri of the American Civil Liberties Union Foundation, Carrie Y. Flaxman, Richard Muniz and Hana Bajramovic of Planned Parenthood Federation of America, and Jennifer L. Branch and Alphonse A. Gerhardstein of Gerhardstein & Branch Co. LPA.

The state defendants are represented in-house by Bridget C. Coontz and Heather L. Buchanan.

The case is Preterm-Cleveland et al. v. Ohio Attorney General et al., case number 1:19-cv-00360, in the U.S. District Court for the Southern District of Ohio.

--Editing by Jack Karp.

For a reprint of this article, please contact reprints@law360.com.