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Judicial overreach or constitutional right: Ohio case spotlights judicial power versus regulatory power

5/16/25

By: Amy C. Baughman and Spencer M. Sukel

Moe, et al. v. Yost, et al., Slip Copy, 2025 WL 844497, 2025-Ohio-914 (10th Dist.) 

In Moe, et al. v. Yost, et al., the Tenth Appellate District held that Ohio’s ban on gender-affirming pharmaceutical medical care for transgender adolescents codified under R.C. 3129.02(A)(2), and as enacted by Sub.H.B. No. 68 (“H.B. 68”), is facially unconstitutional and accordingly imposed a permanent injunction as to enforcement of H.B. 68’s provisions banning the use of puberty blockers and hormones to assist minor individuals with gender transition. Slip Copy, 2025 WL 844497, 2025-Ohio-914 (10th Dist.). 

On March 26, 2024, two transgender adolescents and their parents (collectively, “Moe”) commenced a civil action against Ohio officials (collectively, “Yost”) responsible for enforcing H.B. 68 in the Franklin County Court of Common Pleas before H.B. 68 took effect. Moe alleged that H.B. 68 violates the Ohio Constitution in several respects. Specifically, Moe alleged in pertinent part that H.B. 68’s provision banning physicians from providing pharmaceutical-driven gender transition services—i.e. prescribing puberty-delaying medication and hormone therapy to minors—violates the Health Care Freedom Amendment (“HCFA”) in Article I, Section 21 (“Section 21”). Moe also sought injunctive relief from the state’s enforcement of the new law. Enforcement means medical care providers’ violations of H.B. 68 are punishable by professional discipline and potential civil liability. After a trial on the merits, the trial court found that H.B. 68 did not violate the HCFA. Moe appealed.  

On appeal, the Tenth Appellate District reversed and imposed a permanent injunction barring enforcement of H.B. 68’s prescription ban codified under R.C. 3129.02(A)(2). In doing so, the Court determined that medically provided gender transition services constitute “health care,” both as that term is used in Section 21 and Ohio’s Revised Code. The Court further determined that because this type of medical treatment is congruent with the nationally accepted prevailing standard of care, it does not fall within the punishment-of-wrongdoing exception weighed by Section 21. For these reasons, the Court found R.C. 3129.02(A)(2) facially unconstitutional. Yost appealed.

On April 3, 2025, the Supreme Court of Ohio accepted Yost’s jurisdictional appeal. The Court also granted Yost’s motion seeking an emergency stay of the Appellate Court’s injunction shortly thereafter. 04/29/2025 Case Announcements, 2025-Ohio-1483. In other words, Ohio will enforce H.B. 68 while Yost’s appeal of the Appellate Court’s adverse ruling pends. Yost asserts two propositions of law. In pertinent part, Yost proposes that the HCFA does not create a parental right to procure pharmaceutical-driven gender transition services for a child. Yost also argues that the Appellate Court endorsed radical constitutional views that empower judges and delegate regulatory power to industry. It goes without saying that Yost’s appeal presents a substantial question of public interest extending to Ohio medical care providers. The Court’s eventual ruling will determine whether H.B. 68 is constitutional, and in so doing, whether providers’ violations of H.B. 68 are punishable by professional discipline and potential civil liability. Until then, however, providers would be well-served to apprise themselves of this recent development. 

For assistance defending claims for medical negligence, please contact Spencer M. Sukel at spencer.sukel@www.fmglaw.com or Amy C. Baughman at amy.baughman@www.fmglaw.com, healthcare lawyers in Freeman Mathis & Gary, LLP’s Cleveland office or your local FMG attorney.

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