Laws with Unintended Consequences: Amendments to SB 1 Help Unlawful Abortion Clinics
Despite many, many gains, pro-life voices have been frustrated in recent weeks and months. You may remember federal judges declaring abortion an essential service, exempting surgical abortion clinics from orders of Director Acton and Attorney General Yost to cease under Ohio’s initial emergency orders on non-essential and non-emergency procedures. Not long ago, we were gutted to learn that infamous abortion provider Martin Haskell was able to re-open his late-term Dayton abortion clinic again just days after losing a lengthy legal battle over his operating without a transport agreement or a variance. How did he do it? Simply by changing a few details and applying for a new permit because Ohio law says that the ODH director “shall” issue a license to anyone who submits the correct paperwork (ORC 3702.30(D))**. Maddening.
But, if you think that it is difficult to shut down abortion clinics (or keep them from opening) now, I have some bad news: an unintended consequence of amendments the Ohio House added to SB1, a regulatory reform bill, seem to prevent the Ohio Department of Health from closing any abortion clinic (or licensed facility) for more than 14 days.
On its surface, SB 1 has nothing to do with abortion. It is a regulatory reform bill that deals with regulations that go through a little-known committee called the Joint Committee on Agency Rule Review (JCARR). For those of you who are not yet tired of home-school for this year, you can learn a little more about JCARR here. It is fairly unique to Ohio and an really good example of legislative oversight of the executive branch. For that reason (and because the timing was right), Ohio House Republicans who have expressed strong concerns with the Governor’s response to the Coronavirus, amended the bill to include several provisions that to specifically limit any orders of the Ohio Department of Health to 14 days unless the orders are approved by a supermajority of JCARR, with three of five members from each of the House and the Senate approving of the orders. The amendments also create a new enforcement mechanism that gives legal standing to any Ohioans to sue under the law and it backdates the law’s effective date to include the current coronavirus response. They then sent it back to the Senate.
To say that this has caused a great deal of political reactions is an understatement. First, those who are opposed to the pace that Ohio’s economy is reopening are strong proponents of the amendments and are flooding Senate offices with demands to pass the bill. This, by the way, includes several pro-life groups in Ohio. Others have expressed concern with the constitutionality of the amendments on several fronts, including that you can’t pass retroactive laws and that laws are not effective for 90 days unless they contain an “emergency clause” and have a supermajority vote. Others have noted that this is fundamental shift in how JCARR functions. Governor DeWine has indicated that he will veto the bill.
If you are still reading this deep dive into Ohio’s politics, you probably want to know why on earth GCRTL would wade into this mess and how it has anything to do with making it even more difficult to close down abortion clinics.
Well, to explain, the law is not interpreted by how it is intended, but in how it is written. The person who first said, “the devil is in the details” was probably talking about legal or legislative writing, because while it seems pretty obvious that the intention of the House was not to make it harder to close abortion clinics, the language they used actually said, “No order of the department shall be effective for a period exceeding fourteen days, except with the approval of the joint committee on agency rule review, as described in section 101.36 of the Revised Code” (if you want to look it up yourself, it starts at line 638 - look for the "House- Passed" version). Unfortunately, it didn’t say “in the instance of pandemics” or even “for the purpose of this section….” It said, “No order.” What most people do not realize is that when the Department of Health takes action to close an abortion clinic (and other licensed facilities), it does so by order of the Director of the Department of Health. You can read my letter to President Obhof detailing these concerns here, and you can see the attachments I included here and here and here. I think it is pretty clear that this would apply to abortion clinics.
Those who are familiar with the Gosnell story know that a huge part of the reason that he was able to operate in such filth and callousness was in very large part due to the politicization of the oversight work of the Pennsylvania Health Department. That is, frankly, something that we cannot allow to happen here in Ohio. Pro-life voices currently have a majority in both the House and the Senate, but that could change at any time. If that were to happen, a pro-abortion majority in either chamber could allow an order to close a clinic to expire after 14 days simply by refusing to meet.
With that in mind, it seems meaningful that this week marks the 7th anniversary of the day when Philadelphia abortion provider Kermit Gosnell was found guilty of the first degree murder of three infants born alive after attempted abortions, one count of involuntary manslaughter in the death of his patient: Karnamaya Mongar, and hundreds of lesser charges. We cannot let Ohio go down that path.
There is zero reason to think that this was an intended effect of SB1, and if the process had allowed for more public input, I do not think that the House would have knowingly passed language that left so much concerning ambiguity, but this is the language that is before the Senate, and their options are to concur (agree with) or not to the House amendments.
If you would like to call or email your Senator and tell him or her that you are pro-life and do not want them to pass SB 1 until they can be sure it would not limit the Director’s authority to close abortion clinics or other licensed facilities that endanger the health and safety or prey on the vulnerable, you can find contact information here.
**Note that some browsers occasionally have problems with direct links to the revised code. If you pull up an "empty" file at this link, click on the "Ohio Revised Code" link and then click "Title 37." That will open up the section of the code that governs health. If you click on "3702 Hospital Assurance" and then scroll down to 3702.30 you will reach the correct section of the code. The applicable line is line (D).