COLUMBUS, Ohio (CN) – An attorney for the Ohio Department of Health argued before the state’s high court Tuesday that the last abortion provider in the northwest part of the Buckeye State must be closed because it does not have a valid agreement with a local hospital.
Capital Care Network, located in Toledo, remains open only because of a July 2016 decision in the Ohio Court of Appeals, in which Judge Arlene Singer ruled that the clinic’s closure would create an undue burden on women seeking abortions.
The state had denied the abortion clinic a health care facility license and tried to shut it down after Capital Care was unable to obtain a written transfer agreement, or WTA, with a local hospital.
The transfer agreement – required by Ohio law – is used in cases of medical emergencies and “specifies a procedure for the transfer of a patient from an [ambulatory surgical facility, or ASF] to a hospital,” according to the 2016 ruling in the case.
Ohio public hospitals were forbidden from entering into WTAs with abortion providers in September 2013 when Gov. John Kasich signed House Bill 59 into law.
In a last-ditch effort to avoid being closed, Capital Care obtained a WTA with the University of Michigan Health System in 2014.
But a hearing examiner determined the WTA did not comply with Ohio law, finding that the hospital – which is 52 miles from Capital Care – did not qualify as “local.”
In the Court of Appeals opinion, Judge Singer questioned the necessity of the transfer agreements and pointed out that Capital Care has not needed to transfer a patient to a hospital in the past 12 years.
She upheld the decision of the Lucas County Common Pleas Court in favor of Capital Care and wrote that the clinic’s “burdens weighed against the virtually nonexistent health benefits of the licensing provisions.”
Judge Singer also ruled that Ohio unconstitutionally delegated authority to hospitals and physicians, who are able to grant variances if providers are unable to obtain WTAs.
“This delegation of authority gives hospitals and doctors the opportunity to fill any void that the licensing provisions, which prohibits [sic] state-funded hospitals from entering into WTAs with abortion providers, did not fill,” Singer wrote. “This could effectively eliminate the opportunity of women to seek and obtain abortion procedures in northwest Ohio. We find this delegation of authority unconstitutional.”
Attorney Stephen Carney represented Ohio at oral arguments Tuesday morning, arguing that Capital Care’s agreement with the University of Michigan hospital fails to meet statutory requirements.
He cited the hearing examiner’s expert testimony, which held that a 30-minute transfer time from an ASF to a hospital is a reasonable standard.
“The rule … doesn’t use the ‘l’ word ‘local,’” Carney admitted, “[but] no one seriously contends you could have an agreement with a California or Cincinnati hospital … They can’t say there is no geographic requirement under the rule.”
Ohio Supreme Court Justice William M. O’Neill repeatedly asked Carney about the rational basis for the distance requirement, but the attorney failed to provide a concrete answer.
He said the examiner had to draw a line somewhere, and opined that Capital Care “doesn’t raise a rational basis challenge at all … They raise a due process claim about delegation.”
“I’m raising it this morning,” Justice O’Neill responded.
Carney then lambasted Ohio’s Sixth District Court of Appeals for its 2016 decision, and called the court “incredibly wrong” for considering an undue burden claim that he said was never raised by Capital Care.
“The Sixth District was completely wrong [when it considered] … this an abortion case,” the attorney said, and concluded with a reminder to the justices that, “We shouldn’t distort the normal rule of law [specifically] for abortion clinics.”
Attorney Jennifer Branch argued on behalf of Capital Care, and was asked by Justice Judith L. French about whether she raised an undue burden claim at any point in the litigation process.
Branch admitted she had not, but said “the law changed in the middle of the case,” and defended the appeals court’s decision to apply the undue burden standard.
The attorney focused her arguments on the unconstitutionality of the WTA statute, which she called “a rider … [to] a 2,700 page budget bill” that violates Ohio’s single-subject rule.
“There is no connection, no unity [between the statute and the bill],” Branch said, “[and] there are thousands of sections in the budget bill that have nothing to do with the transfer agreements.”
In her closing statements, Branch admonished the state for using H.B. 59 to put “all of the power to license abortion providers in the hands of the hospitals [and physicians]” and out of the hands of the director of the Department of Health.
She asked the justices to affirm the lower court’s decision, or at least remand and give Capital Care the opportunity to provide more evidence on the record.
No timetable has been set for the Ohio Supreme Court’s decision.