Breaking News: Ohio Supreme Court Upholds ProLife Laws against two legal challenges.
Last fall, the Ohio Supreme Court heard two cases related to Ohio abortion clinics and clinic regulations.
In one case, Capital Care Network of Toledo v State of Ohio Department of Health, an abortion clinic operated by the management of Founder’s Women’s Health abortion clinic in Columbus, challenged the Ohio Department of Health’s order to close the clinic because it was not in compliance with a state law requiring abortion clinics to have a transfer agreement with a local hospital, which the state subsequently defined as a clinic within 30 miles away, or obtain a medical variance for the law.
Oral arguments were heard by the court in September of 2017, just days after the clinic was fined by the Ohio Department of Health for transferring a patient who was believed to have a perforated bowel following an abortion to a local hospital in the private vehicle of a non-medical staff person. The law was first challenged in the Lucas County (Toledo) court of common pleas, which reversed an Ohio Department of Health’s decision to revoke the license of Capital Care Network of Toledo. The 6th District Court of Appeals in Ohio upheld the Common Pleas Court’s decision. The Ohio Supreme Court released an opinion today saying that the state was within its right to close the clinic. You can read the Ohio Supreme Court's Decision, here.
The second case, Preterm-Cleveland Inc. v Kasich, was heard in oral arguments at the Ohio Supreme Court just two weeks later. In that case, Preterm challenged the Ohio law that required abortion clinics to obtain a transfer agreement with a local hospital, prohibit state-funded hospitals from entering into transfer agreements, and requiring a test for a fetal heartbeat as part of the informed consent before an abortion. The provisions were added to the state budget in 2014, and Preterm made various arguments, including that the law violated Ohio’s one subject rule and violated previous court decisions that said state lawmakers could not make it too difficult to have an abortion. The state made various arguments in defense of the law and argued that Preterm did not have standing to sue because there was no injury to Preterm. A copy of the decision by the Cuyahoga County Court of Common Pleas is available here and a copy of the decision by the 8th District Court of Appeals is here. You can read the Ohio Supreme Court's Decision, which declared that the clinic did not have grounds to sue, here.
Both majority decisions were authored by Justice O'Donnell and joined by Justices Kennedy, Fischer, DeWine, and French. Dissenting were Justice Bill O'Neill, who recently resigned from the court, and Chief Justice Maureen O'Connor.
Neither majority opinion delved into the constitutionality per se of the questions involved, although Chief Justice O'Connor's dissent did note some of the constitutional issues brought out in the oral arguments by abortion industry attorneys. Some commentators think that this could open the door to separate federal litigation.
In the Capital Care Toledo case, the court syllabus declares, "The order of the Ohio Department of Health revoking the health care facility license of Capital Care Network of Toledo is supported by reliable, probative, and substantial evidence and is in accordance with law because Capital Care operated without a written transfer agreement for a period of five months and its subsequent agreement with the University of Michigan does not satisfy the Ohio Administrative Code requirement to establish and maintain written transfer agreements for patients in emergency situations," and the opinion concludes, "Accordingly, we reverse the judgment of the court of appeals and reinstate the order of the Ohio Department of Health revoking and refusing to renew the license of Capital Care Network of Toledo" (our emphasis).
We anticipate that the Ohio Department of Health will immediately take steps to order the closure of Capital Care Network of Toledo’s surgical practice. The clinic may continue to provide medical abortions, and could pursue either federal litigation or a variance under Ohio’s law that allows a clinic that cannot get a transfer agreement to identify backup physicians who can take over patient care and directly admit to a local hospital. The majority opinion in CCN noted that the clinic did not pursue this option.
It is worth noting that the Toledo abortion clinic is owned and operated by the same people who operate the Founder's clinic in Columbus. The company owes nearly a million dollars in back taxes and fees to local, state, and federal taxing entities and was recently fined $40,000 for failing to follow their emergency operations plan after an abortion procedure was stopped because the doctor thought he had perforated a patient's bowel.
We also anticipate Pate that CCN May start referring its surgical patients to Founder’s, in which case the need to fill the upcoming 40 Days for Life campaign (gcrtl.org/40-days-for-life) and recruit new Sidewalk counselors and prayer partners (Gcrtl.org/swc-survey) is more critical than ever!
update: (2/6/18 @3:15 pm): ProMedicaHealth, a Toledo hospital system that has so far remained neutral by refusing a transfer agreement issued a statement earlier today indicating that they are reconsidering their neutrality and will make a decision soon. Pro-abortion activists are expected to stage a protest Monday afternoon calling on the hospital to enter into a transfer agreement. Toledo RTL President Ed Sitter has asked pro-life voices to reach out to ask pro-medics to remain neutral.