Appeals court hears Kettering abortion provider dispute with state

Appeals court judges on Tuesday heard an appeal from the Dayton-area’s lone abortion provider, which is fighting a state ruling that could force the clinic to close.

The Ohio Department of Health in November 2016 revoked and refused to renew Women’s Med Center’s ambulatory surgical facility license. Supporters said political interests were behind the state’s ruling, while a state lawyer said the clinic simply failed to meet requirements.

The case centers on a state law that requires clinics that provide abortion services to have a written transfer agreement with a local hospital that stipulates the hospital will accept a patient if the patient needs emergency medical care.

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Jennifer Branch and David Greer, co-counsel for Women’s Med, made the case Tuesday in front of the three-judge panel of Mary Donovan, Michael Hall and Michael Tucker that the transfer agreement is a political device being used to shutter abortion clinics in Ohio.

“I was very glad that two of the judges asked the most important question: ‘What if the ODH denied the variance and denied the license because they are an abortion clinic?’ I don’t think the state gave a very good to answer to that,” Branch said. “The problem here is that when a decision is made by the government to deny a license, the license holder should have an opportunity for a hearing and a review by this court.”

Stephen Carney, deputy solicitor in the Ohio Attorney General’s Office, represented ODH on Tuesday. He said the agency and the attorney general believe the case is a straightforward procedural issue.

“This is simply whether this particular surgical clinic met the requirements to have a surgical license, and they did not,” Carney said. “This particular type of issue about a variance is not something that can be appealed in this kind of case, and that is all there is to it. It is just a procedural issue.”

Branch expects a decision from the appellate court in two to three months.

“The conventional wisdom is this court is very quick,” Branch said. “If we are not successful here, then it is on to the Supreme Court of Ohio.”

In 2016, Judge Mary Wiseman allowed Women’s Med to remain open as it fought the state’s effort to take its operating license. The clinic had filed an administrative appeal after the state health director revoked the license for alleged violations of transfer agreement and backup physician rules.

However, in August 2018, Wiseman’s 20-page ruling on the latest challenge came down to one basic point: the “court lacks the jurisdiction” to intervene in the dispute, she said.

MORE: Kettering abortion clinic faces closure if it loses court fight

Women’s Med hasn’t been able to get local hospitals to approve a written transfer agreement.

Clinic supporters said the agreement isn’t needed because hospitals already have to take emergency patients and blamed political motivations. Proponents of the measure have said clinics that cannot obtain transfer agreements have that difficulty because they are medically unsafe.

The Kettering abortion clinic is about four miles from both Kettering Medical Center, operated by Kettering Health Network, and Miami Valley Hospital South, operated by Premier Health.

Branch said the Women’s Med Center would remain open if it could get one of the local hospitals to sign the agreement.

“The only hospital here in Dayton who has that ability that’s not religious is Miami Valley,” she said. “This whole case would be dismissed in five minutes if Miami Valley would sign a written transfer agreement.”

Carney didn’t disagree with that opinion.

“We would not be in this litigation,” he said, affirming what would happen if the clinic had an agreement. “This is just a straightforward enforcement issue.”

Dayton Right to Life Assistant Director Margie Christie said she expects the Court of Appeals will uphold the Ohio Department of Health’s license revocation order.

“Society should never allow a situation that puts a mother in direct opposition to her own child,” Christie said.

NARAL Pro-Choice Ohio Executive Director Kellie Copeland said the closing of Women’s Med would create a hardship for women seeking health care.

“There are seven surgical facilities and two medication-only abortion clinics in Ohio,” she said. “Each and every one of them are a critical resource for their patients. If Women’s Med Center were to close, it would be a devastating loss for the people who need their care.”

In February of last year, ProMedica hospital system authorized a patient-transfer agreement to keep the last abortion clinic in Toledo operating.

“I represented Capital Care Network of Toledo,” Branch said. “We spent 5 years litigating their administrative hearing and their appeals and in the end lost in the Ohio Supreme Court. The outcome of that case, however, is that clinic is still open because a local hospital stepped up and gave them a written transfer agreement within days of the Supreme Court’s decision.”

MORE: Kettering abortion provider appeals ruling that would force closure

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