Ohio High Court Deals Double Blow to Abortion Clinics

COLUMBUS, Ohio (CN) – Two separate rulings released Tuesday by the Ohio Supreme Court dealt a serious blow to the state’s abortion providers, including revoking the medical license of the last abortion provider in the northwest part of the Buckeye State.

Both decisions came by way of a 5-2 majority and were written by Justice Terrence O’Donnell.

In Capital Care Health Network of Toledo v. Ohio Department of Health, the court reversed a judgment from the Lucas County Court of Appeals and ruled the Department of Health had sufficient evidence to revoke Capital Care’s health care facility license.

State law requires ambulatory surgical facilities, including Capital Care, to have a written transfer agreement with a hospital located less than 30 minutes away.

Capital Care’s agreement with the University of Toledo Medical Center was terminated by the university in 2013, which forced the abortion provider to seek an agreement with an out-of-state provider.

It agreed to a transfer agreement with the University of Michigan – located 52 miles away in Ann Arbor – in 2014, after having operated without an agreement for five months.

The Department of Health revoked Capital Care’s health care facility license in February 2014, which prompted the abortion provider to file suit in the Lucas County Common Pleas Court.

Oral arguments were held before the Ohio Supreme Court last September. The majority of the justices sided Tuesday with the Department of Health, which argued that Capital Care’s transfer agreement with the University of Michigan does not comply with state law.

“Because the rule provides for the transfer of patients in emergency situations,” Justice O’Donnell wrote, “it anticipates that the patient will be quickly transported to a nearby hospital for emergency treatment rather than taken to one further away over a longer period of time. The testimony established that the Ann Arbor agreement would not have allowed for the effective transfer and treatment of a patient in an emergency situation.” (Emphasis in original.)

Capital Care also argued that its due process rights were violated when it was denied the opportunity to apply for a waiver, an argument the court rejected.

“Importantly, Capital Care has maintained throughout these proceedings that its agreement with the University of Michigan Health System complies with the rule, and it did not seek a variance or a waiver of the rule’s written transfer agreement requirement even during the extended period in which it operated without any written transfer agreement,” O’Donnell wrote. “Thus, its claim that it has now been denied due process by being deprived of the opportunity to seek a variance or a waiver is not well take, because it never believed it needed one in the first instance, did not pursue a variance or a waiver, and thus has not been denied that opportunity.”

In the other case decided on Tuesday, the Ohio Supreme Court determined a Cleveland clinic lacked standing to challenge the constitutionality of several provisions of the state’s 2013 budget bill.

Preterm-Cleveland Inc. claimed the bill violated Ohio’s one-subject rule because its provisions regarding written transfer agreements and fetal heartbeat detection are unrelated to the state budget.

The state’s highest court, however, ruled that because the abortion provider failed to prove it had or would suffer a “concrete injury” from the bill’s passage, it lacks standing to challenge the provisions.

Justice O’Donnell cited a lack of evidence provided by Preterm, writing that the clinic only “offered unsubstantiated, conclusory averments about those provisions creating new administrative burdens [and] limiting the number of hospitals with which it could have such an agreement.”

The bill’s fetal heartbeat provision requires physicians to determine if a fetal heartbeat exists prior to performing an abortion. The court’s majority found that Preterm failed to provide credible evidence it would be affected by the provision.

“Although Preterm presented evidence that it altered its conduct due to fear of criminal and civil liability pursuant to those provisions, it neither suffered nor is threatened with a direct and concrete injury because of them,” O’Donnell wrote. “Preterm has not been prosecuted nor does it face a credible threat of direct prosecution from [the heartbeat provision] because that statute applies to persons who perform or induce abortions … Preterm does not actually perform or induce abortions, so it cannot violate this statute.”

Chief Justice Maureen O’Connor authored a dissenting opinion in each of the rulings, and argued in Capital Care Network that the written transfer agreements are unconstitutional because they create an undue burden on a woman’s right to obtain an abortion.

“At best,” she wrote, “the written-transfer-agreement provisions confer a theoretical benefit to patients who seek follow-up care for non-emergency complications related to their abortion procedures and who may have a simpler time obtaining treatment at a hospital with a written transfer agreement.”

“But the evidence shows that a very small number of women require treatment for non-emergency complications while they are still at the facility and there is no evidence that a patient would specifically seek out the hospital with the written transfer agreement instead of a healthcare facility close to home after leaving the clinic,” O’Connor continued. “These limited and speculative benefits are not sufficient to justify the burdens on access to abortion services caused by the statutes. … Toledo will be left without an abortion clinic, forcing women from northwestern Ohio to travel to clinics in Cleveland or Columbus to obtain an abortion at a clinic.”

In Preterm-Cleveland, the chief justice argued that because the fetal heartbeat provision requires patients to make additional appointments for ultrasounds, it has a substantial effect on clinics like Preterm.

“The majority ignores Preterm’s argument that the heartbeat provisions injure Preterm because Preterm is required by law to host a second appointment, and sometimes additional appointments, when a fetal heartbeat is detected,” O’Connor wrote. “Importantly, this argument is relevant even if the majority is correct that the text of the heartbeat provisions applies only to individuals. I would find that the burden of facilitating and hosting additional appointments constitutes a concrete and particularized injury sufficient to give Preterm standing.”

Justice William O’Neill sided with Chief Justice O’Connor in both of her dissents.

Joining Justice O’Donnell in the majority on both opinions were Justices Sharon Kennedy, R. Patrick DeWine, Patrick Fischer, and Judith French.

The Ohio Department of Health declined to comment on the Capital Care Network ruling. None of the other parties involved in either case immediately responded Tuesday to requests for comment.

The Ohio chapter of the American Civil Liberties Union released a statement on the decision in Preterm-Cleveland, which included comments from legal director Freda Levenson.

“We must point out that the Court’s decision only addresses technical issues,” Levenson said. “The decision does not speak to the deepest problem with the challenged provisions – that they are blatantly unconstitutional. That crucial issue remains to be redressed.”

“We are extremely disappointed with the Ohio Supreme Court’s ruling,” ACLU volunteer attorney Jessie Hill said in the statement. “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.”

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