Abortion Clinic Wins Injunction in Ohio

     (CN) – A federal judge ruled that Ohio cannot stop Planned Parenthood from operating through a newly enacted automatic suspension rule.
     Last month, Planned Parenthood Southwest Ohio Region, or PPSWO, and Women’s Med Group PC claimed a new Ohio rule would subject them to immediate closure if the state did not act on their hospital transfer variance applications.
     The two clinics sued Ohio Department of Health Director Richard Hodges, University of Cincinnati Medical Center LLC and UC Health in Federal Court to challenge the statute.
     Regulations began with the requirement that ambulatory surgery facilities – clinics that provide same-day surgery – have a written transfer agreement with a nearby hospital, according to the lawsuit. The state can grant a one-year renewable variance that acts as a waiver to the transfer requirement.
     Legislators took the restrictions a step further in 2013 by banning abortion providers from obtaining a transfer agreement with a “public hospital,” the clinics say. They claim the state cracked down even harder in its 2015 biennial budget, adopting a provision that “immediately and automatically suspend[s]” an ambulatory surgery center’s license if the state denies a variance application or fails to act on it within 60 days.
     The automatic suspension rule went into effect Sept. 29. PPSWO and Women’s Med Group said the new requirements “are part of a deliberate strategy to severely reduce access to abortion by imposing and enforcing laws and regulations that do not promote women’s health or any other valid state interest.”
     PPSWO’s Sept. 25 variance application was denied because Hodges said three “back-up physicians” was not a good enough alternative to a transfer agreement with a local hospital, according to court records. Another application, submitted Sept. 28, is pending. The clinic was granted a temporary restraining order on Sept. 30 that was good through Oct. 13.
     On Tuesday, U.S. District Judge Michael Barrett granted PPSWO a preliminary injunction preventing Ohio from enforcing the new rule.
     Barrett decided to extend protection because the automatic suspension provision may violate the clinic’s due process rights. The judge ruled that PPSWO does not have “a pre-termination opportunity” to respond to a variance application denial before its license is suspended.
     “The pre-deprivation opportunity to respond must come after, not before, the discretionary decision,” Barrett wrote. (Emphasis in original.)
     Hodges’ office has not shown why an opportunity to respond to a variance application denial would be an undue burden because that used to be routine, the judge ruled. He called for Hodges to allow hearings in such proceedings.
     “Given that PPSWO’s variance application is subject to the complete discretion of the director, a hearing would permit PPSWO an opportunity to respond to the reasons for the denial, including an opportunity to address whether the alternative arrangements for emergency treatment for the patients are adequate,” Barrett wrote.
     The judge ruled that Hodges’ office cannot suspend the clinic’s license under the automatic suspension provision while the order is in effect. Barrett cited the possible denial of patient services as one reason to grant the injunction.
     “The immediate shutdown of [PPSWO’s] operations would mean that women with previously scheduled appointments and new patients could face a delay or be precluded from obtaining abortion services at those clinics, which may result in irreparable harm,” he wrote.

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