In two decisions that could force the closure of the last abortion clinic in Toledo and impose additional administrative and caseload burdens on one in Cleveland, a 5-2 majority of the Ohio Supreme Court has overturned lower state court rulings. An appeal is expected.
The pair of cases involves state restrictions regarding transfer agreements that clinics are required to have with hospitals in case of patient emergencies. The transfer law has been in effect since 1986 and the two clinics each had had such agreements. However, as part of an aggressive nationwide drive to make abortion ever more difficult for women to obtain and clinics to provide, the Republican-controlled Ohio legislature prohibited public hospitals from signing such agreements with abortion clinics, and barred doctors at those hospitals from using their staff privileges to help clinics get variances.
One of the plaintiffs in the case, Capital Care Network of Toledo, had had a transfer agreement with the University of Toledo Hospital which terminated it after the law passed. So Capital Care crossed the state line to get a new one with the University of Michigan Health System in Ann Arbor.
In response, the legislature inserted language into its 2013 budget to require that transfer agreements only be with local hospitals within a 30-mile radius. The Ann Arbor hospital is 52 miles away. As a consequence the health department pulled the clinic’s license, implementation of which was held abeyance as Capital’s lawsuit worked its way through the courts.
After the ruling was announced Tuesday, the president of Ohio Right to Life said in a written statement that the forced-birther organization expects the Toledo clinic “will be closed immediately” by the health department. Laura A. Bischoff and Lynn Hulsey report:
NARAL Pro-Choice executive director Kellie Copeland said in a written statement that women need access to safe, legal abortions within their communities. “Today’s politically-motivated decision is devast[at]ing 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.”
In addition to the changes in the transfer law, the legislature had included a new requirement in the budget that doctors must check for a fetal heartbeat and inform the woman before an abortion can be performed. This regulation requires women to return to the clinic for a second visit. Preterm Cleveland, Inc., filed a suit challenging the constitutionality of including such items in the budget on the grounds that doing so violates Ohio’s Constitution “single subject” provision meant to bar unrelated “riders” from being added to legislation.
But the court majority ruled, contrary to Preterm’s claims, that it was not harmed by the regulations and therefore had no standing to sue.
Republican Chief Justice Maureen O’Connor and William M. O’Neill, the only Democrat on the court, who resigned on Jan. 26 to seek the governorship, dissented. O’Connor wrote:
I would hold that the General Assembly unconstitutionally enacted the statutory changes in violation of the one-subject rule, the statutes unconstitutionally place an undue burden on a woman’s right to obtain a previability abortion, and the statutes unconstitutionally delegate licensure power to private parties.
“Undue burden” reiterates the language contained in two landmark abortion rulings by the United States Supreme Court. The first was Planned Parenthood v. Casey of 1992, a Pennsylvania case in which a precarious Court plurality reaffirmed the 1973 Roe v. Wade ruling while arguing that restrictions could be placed on abortion rights as long as these did not place an undue burden on women seeking to terminate their pregnancies. No specific parameters were set regarding this burden.
In 2016, however, in a Texas case, the Supreme Court ruled on some specifics in its Whole Woman’s Health v. Hellerstadt decision. The majority ruled against a state law mandating that physicians performing abortions had to have admitting privileges at a nearby hospital and requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center. This, the justices said, made it harder for women to get abortions and thus constituted an undue burden on abortion access, thereby violating the Constitution.
If further appeals fail to reverse the Ohio Supreme Court’s decision, the loss of the Toledo facility will reduce the number of clinics that provide abortions in the state to seven. In 2010, before the boatload of constraints on abortion and clinics providing them were added, there were 16 such clinics in Ohio. Since 2011, Ohio Gov. John Kasich has signed 20 bills restricting abortion.
