Ohio Boneless Wings Case Dissent Warns of Abortion Access Effect

The Ohio Supreme Court’s Republican majority on Monday said it wouldn’t reconsider its ruling that diners eating boneless wings can reasonably expect to encounter bones, drawing sharp dissents including one suggesting implications for a widely expected decision on abortion rights.

The decision not to reconsider the ruling contained no legal reasoning, but noted that Democratic Justices Jennifer Brunner, Michael P. Donnelly, and Melody J. Stewart disagreed. The 4-3 breakdown is the same as the initial ruling in July, which drew national attention and jokes from comedians Stephen Colbert and Lewis Black.

Donnelly, who lost his re-election bid and will leave the court at the end of the year, seized on the ridicule by writing that “if there was an Olympics for sophistry, the majority’s opinion would certainly have taken the gold.” He also said the ruling was “exactly the type of activism self-described conservative justices purport to disdain.”

He also wondered what, in his eyes, these legal gymnastics meant for a constitutional amendment voters passed last year to enshrine abortion rights and a corresponding case over its interpretation that the court is widely expected to review.

“If any conclusion contrary to his or hers is by definition ‘unreasonable,’ then in what way might a result-oriented jurist contort words like ‘right to make,’ ‘reproductive decisions,’ ‘including,’ ‘abortion,’ or ‘fertility treatment’ as found in Article I, Section 22 of the Ohio Constitution?” Donnelly wrote.

The ruling at issue ended a lawsuit filed in 2017 by plaintiff Michael Berkheimer against a restaurant operator and others. He said a small chicken bone tore his esophagus after eating garlic parmesan wings that were advertised as boneless.

In the ruling, the justices reaffirmed a six-decade-old test that said a supplier’s possible liability for breaching its duty of care by not removing an “injurious substance” from food depends on whether the consumer could’ve reasonably expected and guarded against the substance.

The authoring justice, Joseph T. Deters (R), also said “it is common sense that that label was merely a description of the cooking style” and that a diner who reads “boneless wings” on a menu “would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating ‘chicken fingers’ would know that he had not been served fingers.”

Campaign Issue, Media

Not all the justices who wrote Monday dissented. Justice Patrick F. Fischer (R) said he voted not to reconsider because Berkheimer’s pleading “merely reargues a case” and doesn’t meet the standard set in the court’s practice rules. He also bemoaned that the decision was left “to linger into the heart of the election season,” where it was brought up as a campaign issue.

Fischer also said the court should never be swayed by news articles and media commentary.

“Such articles directly attack the rule of law and threaten its replacement with the policy preferences of a few,” he wrote.

But Stewart, who wrote her own dissent detailing purported errors in the original ruling, reasoned that Donnelly’s inclusion of multiple articles about the initial ruling was not to change the majority’s mind, but “to point out just how absurd the majority opinion is to conclude that reasonable minds could come to only one conclusion.”

Berkheimer is represented by Emmett E. Robinson of Cleveland, Robb S. Stokar of Cincinnati, and Minnillo Law Group Co. Restaurant operator REKM is represented by Markesbery & Richardson Co. Defendants Wayne Farms LLC and Gordon Food Service Inc. are represented by Locke Lord LLP, while Gordon’s also represented by Green & Green Lawyers.

The case is Berkheimer vs. REKM LLC, Ohio, No. 2023-0293, 12/9/24.