Justices issue legal blows to 2 Ohio abortion clinics

AP News
Posted: Feb 06, 2018 5:57 PM

COLUMBUS, Ohio (AP) — A pair of abortion clinics claiming hardships related to Ohio's escalating restrictions on the procedure lost separate fights in the state's high court on Tuesday.

The Ohio Supreme Court agreed with the state's decision to close the last abortion clinic in Toledo and end litigation initiated by a clinic in Cleveland challenging the constitutionality of abortion-related restrictions by the state.

In a 5-2 ruling, the court said the Ohio Department of Health was within its rights to revoke the license of Capital Care of Toledo, a decision the clinic is expected to appeal. Justices also concluded that Preterm of Cleveland lacked the legal standing to bring its lawsuit challenging the constitutionality of restrictions included in Ohio's 2013 state budget.

In the Toledo case, the court ruled the Health Department acted within its rights in 2014 when it decided to shut down Capital Care. Justices said the clinic violated a requirement because it no longer had a valid patient-transfer agreement.

Chief Justice Maureen O'Connor dissented in an opinion joined by former Justice William M. O'Neill, who submitted his opinion before resigning Jan. 26.

She wrote that Capital Care had complied with the state Health Department's rule on transfer agreements and that it was only abortion-related restrictions tucked into the state budget in 2013 that required the partnering hospital to be "local." She concluded those new laws were unconstitutional.

The restrictions mandated that clinics' long-required transfer agreements be with local hospitals, and also barred public hospitals from providing them. The University of Toledo Hospital ended its transfer arrangement with Capital Care about two months before the law was enacted.

Republican Attorney General Mike DeWine's office asked the high court during oral arguments in September to override lower court rulings and uphold the state's order. A lawyer for the clinic told the court that the state is trying to prevent women in northwestern Ohio from seeking legal abortions and is putting them at greater risk.

After the Republican-controlled state Legislature opted to outlaw transfer agreements with public hospitals, Capital Care went out of state, negotiating its required agreement with the University of Michigan Health System in Ann Arbor.

Legislators responded by passing a new law, this one setting a mileage limit on emergency care that Ann Arbor, at 52 miles away, was too far to meet.

In upholding the license revocation, Justice Terrence O'Donnell wrote for the majority: "In short, the evidence plainly established that the Ann Arbor agreement would not allow for the transfer of patients 'in the event of medical complications, emergency situations, and for other needs as they arise. ODH's determination that Capital Care did not comply with Ohio (administrative code) was supported by reliable, probative, and substantial evidence."

Preterm had argued that changes to abortion laws passed in 2013 imposed added administrative and caseload burdens on its operations that qualified the clinic to proceed with litigation. The lawsuit itself contended the bill violates the Ohio Constitution's single-subject rule. Justices found Preterm didn't demonstrate true or threatened harm from the regulatory changes.

Attorney Jessie Hill, who represents Preterm, said the court's finding that the clinic lacks legal standing to sue is disappointing and makes it a "sad day for government transparency and accountability." The restrictions were slipped into a 3,000-page budget bill at the last minute with no public comment, Hill said.

The case involved a state constitutional question and can't be appealed to the U.S. Supreme Court, but Preterm is considering its options, he said.

A message seeking comment also was left Tuesday for the attorney representing the clinic in Toledo.

The rulings come as Ohio has seen clinic closures across the state, as well as a decline in abortion procedures.

Abortion-rights advocates tie both to Republican-passed restrictions, some 20 signed by Republican Gov. John Kasich since he took office in 2011. (Kasich has also vetoed a stringent bill that would have limited abortions at the first detectable fetal heartbeat.)

Anti-abortion groups say abortions are declining for cultural reasons, including their own efforts against the procedure, and clinic closures are the result.

Mike Gonidakis, president of the Ohio Right to Life anti-abortion group, said in a statement Tuesday that the court "got it right." He called the rulings affirmation that "abortion should not be advanced at the expense of women's health and safety."


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