By all accounts, abortion opponents have been racking up win after win in the Ohio Statehouse over the last six years, making it more difficult for women to terminate unwanted pregnancies.
Now the Ohio Supreme Court could cement or unravel those wins, depending on how it decides two pending legal challenges.
The high court heard arguments on Capital Care Network of Toledo versus the Ohio Department of Health on Sept. 12 and will hear Preterm-Cleveland, Inc. versus Gov. John Kasich on Sept. 26. Both cases challenge relatively recent restrictions placed on abortion providers.
Preterm is challenging the constitutionality of including abortion policy in a budget bill, saying the maneuver violates the Ohio Constitution’s single-subject rule.
The restrictions being challenged include: mandating abortion clinics to have written transfer agreements with local hospitals; barring public hospitals on providing transfer agreements; and requiring doctors to inform patients about a detectable heartbeat before performing an abortion.
Capital Care Network is challenging the Ohio Department of Health’s decision to revoke its license when the clinic failed to arrange a transfer agreement with a local hospital.
Mike Gonidakis, president of Ohio Right to Life and a member of the state Medical Board of Ohio, said the cases come down to whether abortion clinics have to follow health and safety regulations imposed on other outpatient surgical centers. Ohio Right to Life calls the Capital Care lawsuit “arguably the most significant abortion case in the history of Ohio.”
“If we lose, the abortion facilities are arguably free from any government oversight,” Gonidakis said.
Kellie Copeland of NARAL Pro-Choice Ohio said: “When clinics are forced to close, women must travel long distances and incur even greater out-of-pocket expenses to access care. Women of financial means will be able to go through those extra barriers to access abortion, but many others will not. Those women will be forced to continue pregnancies against their will, or to take matters into their own hands. Ohio is a medical destination state; women should not be denied access to needed health care, or be forced to flee our borders to access care.”
Capital Care Network, the only abortion clinic in the Toledo area, is at risk of closing because it doesn’t have a transfer agreement with a local hospital. The clinic lost its agreement with University of Toledo Hospital and arranged a new one with the University of Michigan 52 miles away. But the state health department determined that Ann Arbor isn’t local and revoked the clinic’s license.
Transfer agreements have been required by administrative rule since 1996 but in 2013, lawmakers embedded the mandate into state law, added the word “local,” and prohibited publicly owned hospitals from providing such agreements. A law adopted later specified 30-miles as the maximum distanced to qualify as local.
Stephen Carney, deputy solicitor for the Ohio Attorney General’s office, said if Capital Care Network were to close, women would have to drive to Detroit or Ann Arbor for abortion services.
That prompted Ohio Supreme Court Justice Bill O’Neill to say: “Counsel, surely you didn’t just say that the undue burden is met if we tell women you can’t have an abortion in Ohio but you can certainly go to Michigan.”
States may regulate abortion as long as the restrictions don’t place an undue burden on a woman’s access to abortion.
On Jan. 22, 1973, the U.S. Supreme Court ruled 7-2 in Roe v Wade that women have the constitutional right to terminate their pregnancies. The ruling came in a case that challenged a Texas law that outlawed abortion except when the life of the mother was in danger. It also gave the state the power to regulate abortion to protect the health of the mother and that authority increased as a pregnancy progressed. Once a fetus is viable outside the womb, the state has an interest in protecting that potential life with restrictions on abortions.
NARAL ProChoice Ohio lists 18 items signed by Kasich that restricts access to abortion or reproductive care, including: defunding Planned Parenthood, requiring abortion clinics to have transfer agreements with hospitals within a 30-mile radius, the new ban on abortions after 20 weeks gestation, a prohibition on public hospitals performing abortions or holding transfer agreements with clinics, stricter standards for juveniles seeking judicial bypass instead of parental consent to terminate their pregnancies, and requiring physicians to perform an ultrasound to detect a fetal heartbeat 24 hours before performing an abortion.
Since these new restrictions have been in place, half of the clinics in Ohio have closed.
“If the Supreme Court of Ohio overturns the lower court rulings, it could result in Toledo losing its only abortion provider, and it could jeopardize access across Ohio,” Copeland said. “If hospitals in Dayton, Cincinnati, Akron, Columbus and Cleveland turn their backs on women the way hospitals in Toledo turned their back on Capital Care, clinics could be forced to close in those cities as well.”
The Ohio Supreme Court typically decides cases within six months of oral arguments.
While current abortion restrictions face legal challenges, state lawmakers are considering more:
House Bill 149: Penalties for receiving payment for aborted fetal tissue would be stiffer.
House Bill 214 & Senate Bill 164: Abortions would be prohibited based on the diagnosis that the fetus may have Down Syndrome.
House Bill 258: Abortions would be prohibited once a fetal heartbeat can be detected.
Senate Bill 28: Fetal remains from surgical abortions would have to be cremated or buried.
Senate Bill 145: Performing a dialation and evacuation abortion would be a felony offense.