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Legal Uncertainties Remain Following Passage of Issue 1 in Ohio

Client Alert

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 or BMD Partner Ashley Watson at

The Ohio State University Launches Its Accelerated Bachelor of Science in Nursing Program

In response to Ohio’s nursing shortage, The Ohio State University College of Nursing is accepting applications for its new Accelerated Bachelor of Science in Nursing program (aBSN). Created for students with a bachelor’s degree in non-nursing fields, the aBSN allows such students to obtain their nursing degree within 18 months. All aBSN students will participate in high-quality coursework and gain valuable clinical experience. Upon completion of the program, graduates will be eligible to take the State Board, National Council of Licensure Exam for Registered Nursing (NCLEX-RN).

Another Transparency Obligation: The FinCEN Beneficial Ownership Information Reporting Requirements

Many physician practices and healthcare businesses are facing a new set of federal transparency requirements that require action now. The U.S. Department of Treasury Financial Crimes Enforcement Network (“FinCEN”) Beneficial Ownership Information Reporting Requirements (the “Rule”), which was promulgated pursuant to the 2021 bipartisan Corporate Transparency Act, is intended to help curb illegal finance and other impermissible activity in the United States.

“In for a Penny, in for a Pound” is No Longer the Case for Florida Lawyers

On April 1, 2024, newly adopted Rule 1.041 to the Florida Rules of Civil Procedures goes into effect which creates a procedure for an attorney to appear in a limited manner in civil proceedings.  Currently, when a Florida attorney appears in a civil proceeding, he or she is reasonable for handling all aspects of the case for their client.  This new rule authorizes an attorney to file a notice limiting the attorney’s appearance to particular proceedings or specified matters prior to any appearance before the court.  For example, an attorney can now appear for the limited purpose of filing and arguing a motion to dismiss.  Once the motion to dismiss is heard by the court, the attorney may file a notice of termination of limited appearance and will have no further obligations in the case.

Enhancing Privacy Protections for Substance Use Disorder Patient Records

On February 8, 2024, the U.S. Department of Health and Human Services (“HHS”) finalized updated rules to 42 CFR Part 2 (“Part 2”) for the protection of Substance Use Disorder (“SUD”) patient records. The updated rules reflect the requirement that the Part 2 rules be more closely aligned with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) privacy, breach notification, and enforcement rules as mandated by the Coronavirus Aid, Relief, and Economic Security Act of 2020.

Columbus, Ohio Ordinance Prohibits Employers from Inquiries into an Applicant’s Salary History

Effective March 1, 2024, Columbus employers are prohibited from inquiring into an applicant’s salary history. Specifically, the ordinance provides that it is an unlawful discriminatory practice to: