The Ohio Supreme Court on Tuesday issued rulings on two cases that solidify the state’s restrictions on abortion clinics and could lead to further efforts to close more clinics, including the Women’s Med abortion clinic in Kettering.
The state has tried to close the Kettering clinic using transfer agreement requirements that are central to the two cases that were decided by the court in the state’s favor.
Today feminist activist Gloria Steinem and Toledo native issued a statement opposing Ohio’s efforts to close abortion clinics. She said politicians should not make medical decisions for women.
“We must not allow a political regulatory scheme to close Toledo’s remaining abortion clinic. Its absence would not diminish the number of abortions but would increase the injury and death of women in my home city and state,” Steinem said. “Democracy begins with each person's control of his or her own body. Without reproductive freedom, there is no democracy for America women.”
The court’s ruling in the Toledo case, involving the Capital Care Network of Toledo, could directly impact the Kettering clinic. On Friday Dayton Right to Life officials and State Rep. Niraj Antani, R-Miamisburg, urged that a local judge shut down the Kettering clinic in the wake of the ruling.
In 2016 Montgomery County Common Pleas 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 Women’s Med license for alleged violations of transfer agreement and backup physician rules.
Wiseman issued an emergency order to stay and suspend the revocation, pending the Ohio Supreme Court’s decision in the Toledo abortion clinic case.
“I expect further litigation in her court,” said Jennifer Branch, the attorney for Women’s Med and Capital Care. “I don’t believe the Supreme Court decision will have much impact on the Women’s Med case because Women’s Med has been able to obtain a variance, or an exception to the rule.”
The Kettering clinic is also involved in a federal lawsuit filed by Planned Parenthood Southwest Ohio and Women’s Med against the Ohio Department of Health. That case was also stayed pending resolution of the Toledo case.
Branch expressed disappointment in the Ohio Supreme Court ruling, saying it will make it “impossible for Capital Care to provide abortions for women in Northwest Ohio.”
She said attorneys are evaluating the next step for the Toledo clinic.
Tuesday’s rulings dealt dealt with issues involving Capital Care and an abortion clinic in Cleveland. Both involved new restrictions adopted by the Ohio legislature, particularly the legal mandate that abortion clinics have written transfer agreements with hospitals in case of emergencies.
Ohio has had a transfer agreement rule since 1986, but in recent years state legislators put the mandate into law, barred public hospitals from participating and defined “local” as within a 30-mile radius.
Also, doctors at public hospitals are blocked from using their staff privileges to help clinics apply for a variance from the agreement rule.
In a 5-2 ruling, the court determined that Capital Care Network of Toledo violated the rule, and that the Ohio Department of Health was within its rights to revoke the clinic’s operating license.
“Now that this issue is settled, Ohio Right to Life expects that this abortion clinic in Toledo will be closed immediately by the Ohio Department of Health,” Ohio Right to Life President Mike Gonidakis said in a written statement.
NARAL Pro-Choice executive director Kellie Copeland said the decision “punishes women for their decision to end a pregnancy.”
“Today’s politically-motivated decision is devastating to women who can’t afford to leave town, who can’t find childcare for an extended time, or can’t pay for the increased costs that come with delayed care,” she said in a statement.
Chief Justice Maureen O’Connor and former Justice Bill O’Neill issued a dissent in the case, concluding that the requirements were unconstitutional.
In the second case, Preterm Cleveland, Inc. versus Kasich, the court ruled in a 5-2 decision that the clinic did not have standing to challenge the state’s decision to embed abortion restrictions into the state budget bill adopted in 2013. Preterm had argued that it violated the Ohio Constitution’s single subject rule that is intended to prevent unrelated “riders,” especially on controversial subjects, from being added to bills.
The court, however, ruled that Preterm failed to prove that it suffered harm.
The 2013 state budget bill included restrictions that require abortion clinics to have written transfer agreements with local, private hospitals, and that doctors determine if there is a detectable fetal heartbeat — and inform the woman — before performing an abortion.
The high court found that Preterm has had a transfer agreement in place since 2005 and the clinic isn’t at risk of being prosecuted for failing to check for a fetal heartbeat since that is a requirement of the doctor, not the clinic. The heartbeat requirement now means patients must return for a second visit to have an abortion.
O’Connor and O’Neill, who is no longer on the court, dissented in that case as well. In her dissent, O’Connor argued that Preterm did suffer harm because now the clinic cannot provide its services in a single visit.
Both cases, heard by the court in September, were considered crucial by both sides of the abortion debate.
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.
In a statement released after the decision, Dayton Right to Life Executive Director Paul Coudron wrote: “We appreciate the Court’s support that the standard of care expected of ALL ambulatory facilities be equally expected of abortion facilities. Why should women’s care be the exception?”
But O’Connor in her dissent on the Toledo case, said closing the Capital Care Network clinic would shut down Toledo’s only remaining abortion clinic.
“Toledo will be left without an abortion clinic, forcing women from northwestern Ohio to travel to clinics in Cleveland or Columbus to obtain an abortion at a clinic,” she wrote.
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