Chief justice wonders about fate of women if Toledo abortion clinic closed

2017-09-12 | The Columbus Dispatch

Sept. 12--State attorneys, arguing Toledo's last abortion clinic is not protecting its patients, urged the Ohio Supreme Court on Tuesday to uphold a Department of Health order to shut down the facility.

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 state law, said Stephen P. Carney, an assistant attorney general representing the state.

Transfer agreements ensure "guaranteed (hospital) admission and continuity of care," he said, adding that the clinic's arrangement with a hospital 50 miles away in Michigan was too far to protect patients. The health department determined 30 miles was a reasonable standard.

State attorneys are asking justices to overturn two lower court rulings that have allowed Capital Care to stay open.

During a hearing before a packed courtroom, some justices appeared concerned about the impact on women seeking abortions should the clinic close.

"What's the alternative for women in this area?" asked Chief Justice Maureen O'Connor.

"I think the closest places would be Detroit and Ann Arbor," Carney said.

"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?" asked Justice William M. O'Neill.

Carney said the "undue burden" standard -- often cited as the standard by the U.S. Supreme Court in abortion cases -- is not part of the Ohio case.

Attorneys for the clinic say the state is trying to deny women in northwest Ohio their right to safe and legal abortions.

Jennifer L. Branch, a Cincinnati attorney representing Capital Care, argued that adding new 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 single-subject rule, "no bill shall contain more than one subject, which shall be clearly expressed in its title."

The local transfer agreement "has nothing to do with appropriations," Branch said.

Carney told justices 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," O'Connor said.

The transfer agreement is not about abortions, said Ohio Right to Life President Mike Gonidakis.

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"It's about health and safety standards," he said.

Gonidakis thinks the State of Ohio made a winning argument Tuesday morning.

"We have health and safety regulations that apply to every clinic in Ohio whether it's laser eye surgery center, abortion or ear, nose and throat," he said. "What we have is the abortion industry that says we want a loophole."

Abortion rights advocates say if the clinic is forced to close, Toledo would become the first major city in Ohio without access to abortion services. The clinic performed 895 abortions last year.

Having the last remaining clinic in Toledo close would be a disaster for women in northwest Ohio, Branch said after the hour-long hearing.

"They would have to travel round trip twice to either Columbus or Cleveland which is impossible for women who work, for women who are low-income, women who have transportation problems," Branch said. "If they're denied access to legal, safe abortions that means their lives are endangered."

At issue is a 2014 order by the Department of Health to close the clinic because it failed to obtain an emergency transfer agreement with a local hospital.

Ambulatory surgical centers, which are outpatient facilities that include abortion clinics, have long been required to have transfer agreements. In 2013, as part of the state budget bill, Ohio legislators and Gov. John Kasich 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, Michigan, but health department officials declared the hospital was not "local."

Both the Lucas County Court of Common Pleas and Sixth District Court of Appeals in Toledo rejected the state's arguments and ruled in favor of the clinic, allowing it to remain open.

Branch also argued 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."

Asked if the requirement created an "undue burden" on woman seeking abortion as determined by the lower courts, Carney said the issue was never raised by the clinic and should not have been considered.

"The Sixth District was incredibly wrong. You can't be more wrong than that because when a party says we're not raising that claim and that doesn't do it what does? That creates bad law for everyone," he said.

Statewide, there are eight abortion clinics in Ohio, including two in Columbus.

In addition to Toledo's Capital Care, the Department of Health is seeking to close Women's Med Center of Dayton, which also is operating without a written transfer agreement or state-approved variance.

ccandisky@dispatch.com

@ccandisky

mhenry@dispatch.com

@megankhenry

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