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Ohio justices hear arguments on state abortion regulation

(September 12, 2017) — About halfway through Ohio Supreme Court arguments Tuesday on what some call the biggest abortion case in the state’s history, Chief Justice Maureen O’Connor wanted to know the impact of shutting down Toledo’s last abortion clinic.

“What’s the alternative for women in this area?” she asked Stephen P. Carney, the assistant attorney general representing the state.

“I think the closest places would be Detroit and Ann Arbor,” he replied before a packed courtroom.

That brought a question from Justice William M. O’Neill, the court’s only Democrat: “Surely you just didn’t just say the undue burden is met if we tell women you can’t have an abortion in Ohio but you can certainly go to Michigan?”

Carney said the question of whether the Ohio law creates an “undue burden” on a woman seeking an abortion — often cited by the U.S. Supreme Court as the threshold to determine whether an abortion law is unconstitutional — is not part of the current case.

The Toledo facility is merely the most visible part of the battlefield in the fight over whether state legislators and Gov. John Kasich properly included new restrictions on abortion clinics in a state budget passed in mid-2013.

Carney urged the seven justices to overturn two lower-court rulings against the state and uphold a 2014 state Department of Health order to shut down the Toledo clinic, arguing that the facility is not protecting patients. Capital Care Network should be closed because it failed to obtain a transfer agreement with a local hospital to take patients in the event of a medical emergency, as required by the 2013 budget, Carney said.

Transfer agreements ensure “guaranteed (hospital) admission and continuity of care,” Carney said, adding that the 50 miles between Capital Care and a hospital in Michigan with which it has an arrangement is too far to protect patients. The health department determined that 30 miles is a reasonable standard.

Jennifer L. Branch, a Cincinnati attorney representing Capital Care, told justices that the state is trying to deny women in northwestern Ohio their right to safe and legal abortions. She said that adding rules about transfer agreements for abortion clinics into a “huge” budget bill violated the single-subject rule of the Ohio Constitution and allowed insufficient opportunity for public debate.

Under the rule, “no bill shall contain more than one subject, which shall be clearly expressed in its title.”

The transfer agreement “has nothing to do with appropriations,” Branch argued.

Carney said the transfer-agreement provision was related to the budget because “it involves how we operate government.”

“That’s a pretty broad statement to say it pertains to the operation of state government,” replied O’Connor, Ohio’s first female chief justice.

Ambulatory surgical centers, which are outpatient facilities that include abortion clinics, have long been required by state law to have transfer agreements, but the 2013 budget barred publicly funded hospitals from entering into such agreements with abortion clinics.

After losing its transfer agreement with the University of Toledo Medical Center, Capital Care secured a new one with University of Michigan Health System in Ann Arbor. But health department officials declared that the hospital is not “local.”

Branch also argued that such agreements are unnecessary. “They could call 911 if they needed to; there is nothing to prohibit that,” she told justices. “No one ever asks if there is a written transfer agreement.”

O’Connor asked, “Are there any other (ambulatory surgical centers) precluded from contracting or entering into a (written transfer agreement) with hospitals, any hospital public or private?”

Branch replied: “No, your honor, only abortion clinics.”

Transfer agreements are not about abortions, said Ohio Right to Life President Mike Gonidakis after the hearing.