UPDATE: Dayton abortion clinic in limbo after denied variance

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UPDATE: Dayton abortion clinic in limbo after denied variance

The Dayton area’s only abortion clinic, Women’s Med Center of Dayton, was denied its latest request for a variance last month by the Ohio Department of Health.

The clinic was seeking to be excused from a requirement that says ambulatory surgery facilities, such as all Ohio abortion clinics, must have written transfer agreements with a local hospital to transport patients in the event of an emergency.

Abortion rights advocates say the transfer agreement requirement creates an undue burden on a patient’s constitutional right to seek an abortion and the Ohio Supreme Court recently agreed in a decision regarding a Toledo clinic.

“These sorts of regulations are not being used to improve women’s health,” said Kellie Copeland, executive director of NARAL Pro-Choice Ohio. “They are trying to use them as a way to sneak around the constitution and try to limit access to abortion.”

Anti-abortion groups say the clinic is failing to meet state safety standards and should be closed.

“This facility has continuously troubled the pro-life community,” said Katherine Franklin, director of communications for Ohio Right to Life. The group issued a press release Monday accusing the Kettering clinic of continuing to operate outside of the law.

Women’s Med Center has an active license to operate, according to the state health department’s website, but it is in the middle of an administrative appeal after the state sought to revoke its license beginning last year.

In September, a hearing officer issued a recommendation to move forward with that revocation on grounds that the clinic did not have a transfer agreement in place. Now that the clinic’s variance has been denied, the state could move forward with revoking its license, but ODH spokeswoman Melanie Amato said there is “no time frame to act on the hearing officer’s recommendation.”

Women’s Med Center of Dayton on Stroop Road.

The clinic likely would challenge the loss of its license in court, said its attorney, Jennifer Branch.

In June the U.S. Supreme Court overruled a Texas law requiring doctors to have admitting privileges at hospitals close by and requiring abortion clinics to meet surgical-center operating standards.

In the majority opinion, Justice Stephen Breyer wrote, “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” adding “each constitutes an undue burden on abortion access.”

A spokesman for Ohio Attorney General Mike DeWine said Ohio’s law is still enforceable because “the fact pattern and the laws in question in the Texas case were different than those in Ohio.”

Ohio law does not require doctors performing abortions to have admitting privileges, but requires that an abortion clinic have a transfer agreement with a local hospital.

The law also bars any public hospitals from entering into written transfer agreements with abortion clinics.

If a clinic cannot reach such an agreement with a private hospital, it can apply for a variance by contracting with one or more physicians who have admitting privileges at a local hospital and who agree to act as a backup if medical care is needed beyond the level the facility can provide.

Women’s Med Center has been unable to obtain a transfer agreement since 2002. It has submitted variance applications in recent years, showing it contracts with two physicians as backup. For years, those variances were neither denied nor granted, according to Branch, and the facility was allowed to continue to operate.

In 2015, ODH told the center it must have contracts with three doctors, Branch said. The application the clinic submitted for 2016 included contracts with three physicians, but was denied on Oct. 21.

“WMC’s provision of only three named backup physicians does not meet my expectation that a variance provide the same level of patient health and safety that a written transfer agreement with a local hospital assures for 24/7 backup coverage,” wrote Ohio Director of Health Richard Hodges in denying the variance application.

The clinic contends there is no evidence that a transfer agreement makes patients safer, Branch said.

But Ohio Right to Life said a clinic’s inability to procure a transfer agreement indicates that the medical community doesn’t view the facility as safe.

“Any Ohioan should be gravely concerned if any facility hasn’t been able to meet that standard,” Franklin said. “If they are a professional medical clinic, then we should expect that they’ve forged those relationships, that they’ve sought contracts with local hospitals to more smoothly transition patients from the facility to the hospital.”

A Toledo abortion clinic was in a similar situation when it was told its transfer agreement with a Michigan hospital 52 miles away violated the “local” part of Ohio’s law.

In considering the case in July, the Ohio Supreme Court found the state’s transfer agreement provisions unconstitutional: “The record does not establish how and why it is advantageous to a patient to have a (written transfer agreement) in place.”

The Supreme Court noted that no patients had needed emergency transfer to a hospital from the clinic in at least 12 years and upheld a lower court’s decision in favor of the clinic remaining open.

Attorney General Mike DeWine has appealed that decision.

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