Abortion Restrictions Upheld in Ohio

by | February 7, 2018

By Randy Ludlow

Abortion clinics in Toledo and Cleveland have lost their attempts before the Ohio Supreme Court to challenge state restrictions on abortion.

In a pair of 5-2 votes, the justices ruled that the Ohio Department of Health legally moved to revoke the operating license of Capital Care Network of Toledo and that Pre-Term Cleveland Inc. lacked standing to challenge abortion restrictions inserted in the 2013 state budget bill.

Chief Justice Maureen O'Connor, a Republican, and William M. O'Neill, the court's lone Democrat who resigned on Jan. 26 to run for governor, cast the dissenting votes in both cases.

The justices overturned lower court rulings in finding state health officials had properly moved to rescind the license of Capital Care Network for its failure to obtain an emergency patient transfer agreement with a "local" hospital.

The University of Toledo Medical Center did not renew its transfer agreement with the clinic after language in the 2013 state budget prohibited public hospitals from entering such agreements with abortion clinics.

The Toledo clinic then entered a transfer agreement with the University of Michigan Health System in Ann Arbor, but the state ruled the hospital was not "local" and moved to yank Capital Care's license. Testimony indicated a patient could not be taken to the hospital by ambulance in less than 30 minutes, as required by health rules.

The court majority rejected grounds of constitutional violations asserted by the clinic and upheld at the trial court and appellate court level. The court found "reliable, probative and substantial evidence" that the clinic's transfer agreement with the Michigan hospital did not comply with state rules.

In her dissent, O'Connor said the new abortion requirements violated the "single subject" rule in the Ohio Constitution when they were inserted in the state budget bill. She and O'Neill both said the transfer agreement requirement placed an undue burden on a woman's right to access abortion services as recognized by a U.S. Supreme Court ruling.

The closure of the Toledo clinic would leave Ohio with seven abortion providers. In 2010, the state had 16 clinics, with increasing state restrictions on their operations prompting many to close.

Jennifer Branch, a Cincinnati lawyer who represented Capital Care Network, said she and her client were "very disappointed" with the court's ruling.

"It really makes it impossible for the clinic to comply with written transfer agreement regulations -- not a single hospital in Toledo will enter one," she said.

Instead, the clinic is working to find a local physician with patient-admission privileges at a non-public local hospital to serve as a "backup" in emergencies, Branch said. The Department of Health granted such a variance to an abortion clinic in Dayton, she said. "Otherwise, the clinic will not be able to continue services."

In the Cleveland clinic case, Pre-Term had claimed that GOP lawmakers violated the "single subject" rule by inserting abortion regulations into the 2013 budget bill, including the transfer agreement language and public-hospital prohibition, and conducting ultrasounds to establish the presence of a fetal heartbeat, requiring more visits by a a woman seeking an abortion.

Lawmakers violated the constitutional language by including matters not involving the budget into the law, the clinic contended.

However, the justices ruled that Pre-Term did not have a legal right to sue the state because it could not prove it suffered or was threatened with "direct and concrete injury." The clinic has had a transfer agreement with University Hospitals Cleveland Medical Center since 2005 and only presented "speculation" how it might be harmed, the majority found.

Jessie Hill, a volunteer attorney for the American Civil Liberties Union of Ohio, said, "These abortion restrictions were slipped into a 3,000 page budget bill at the last minute with no public comment. This is a blow to government transparency and women across Ohio will suffer as a result of this decision."

O'Connor's dissent said the heartbeat-protection provision did injure Pre-Term because it incurred additional expenses in conducting a second appointment for women seeking abortions.

The ruling overturned an appellate court finding that the clinic had standing to challenge the abortion restrictions.

In a statement, Ohio Right to Life President Michael Gonidakis said: "Today, the court affirmed what a vast majority of Ohioans expected -- abortion should not be advanced at the expense of women's health and safety ... the Court, like our pro-life government, got it right. Now that this issue is settled, Ohio Right to Life expects that this abortion clinic in Toledo will be closed immediately by the Ohio Department of Health."

NARAL Pro-Choice Ohio Executive Director Kellie Copeland said: "Once a woman has made the decision to end a pregnancy, she needs access to safe and legal health care in her community. I can't emphasize that enough -- In. Her. Community. I am gravely concerned about the impact this will have on women in Northwest Ohio. Today's politically-motivated decision is devastating to women who can't afford to leave town, who can't find childcare for an extended time, or can't pay for the increased costs that come with delayed care...this decision pushes abortion out of reach and punishes women for their decision to end a pregnancy."

Melanie Amato, spokeswoman for the Ohio Department of Health, said state officials had no comment on the ruling or how soon it may move to close the clinic.

The number of abortions in Ohio reached a record low of 20,672 in 2016 -- the fewest in the 40 years the state health department has kept records.

(c)2018 The Columbus Dispatch (Columbus, Ohio)