Ohio Department of Health Denies Variance Reconsideration for Women’s Med in Dayton
Dr. Bruce Vanderhoff, director of the Ohio Department of Health has denied Women’s Med of Dayton a variance to operate an ambulatory surgical facility without a transfer agreement with a local hospital. Without either a transfer agreement or a valid variance, a clinic cannot perform surgical procedures.
Why was the variance denied?
The variance was denied and denied for reconsideration because one of the physicians is not an OBGYN.
What happens next?
Legally, there are a few things that can happen. Administrative law for all sectors (not just abortion clinics) is complex. First, the clinic has an opportunity to submit another physician as a backup as part of an application for a variance. If that does not happen, the Ohio Department of Health will start the process to revoke the license for Women’s Med in Dayton and the process of revoking a license will be started with the Ohio Attorney General. The length of that process could vary. When this happened to Women’s Med in the past, it took about three years. Given the legal precedent, it could go faster. The clinic could also voluntarily cease surgical abortions.
Didn’t the Ohio Department of Health already close this clinic?
Yes. You may remember that several years ago, the Ohio Department of Health ordered closure of Women’s Medical Center of Dayton for failing to meet the requirements of a transfer under Ohio law. After a long legal battle, the Ohio Supreme Court upheld the closure of the clinic in the Fall of 2019.
Unfortunately, the clinic took advantage of a loophole in Ohio’s law that allowed them to start a new abortion business with a similar but new name and apply for a new license with a clean slate. Ohio’s law governing ambulatory surgical centers (O.R.C. 3702.30) stipulates that the director of the Ohio Department of Health shall issue a license to a facility as long as it submits an application and meets the criteria established by law. For those who do not speak legalese - the words “shall” and “may” are very critical in legislation. Statutes using “shall” do not give the state any real opportunity to take into consideration things like “this facility was closed by law a few days ago,” especially when the statute itself does not list any other factors that can be considered.
I read that the Governor and Ohio Department of Health just gave the clinic a new license to keep it open?
Frankly there was a lot of public misunderstanding on this issue as some entities misunderstood the legal requirements and thought that the current administration had used discretionary powers to keep the clinic open despite a court decision closing it. This is simply not true, even though it was reported in several pro-life media outlets and by several groups.
So how did we get here?
Well, as noted in the fall of 2019, the Supreme Court upheld the revocation and closure of the previous clinic. The “new” clinic opened and applied for a license to operate. That license was approved and was valid through the fall of 2020. In 2020, Women’s Med Dayton started the renewal process. As part of the renewal, they applied for a variance to the transfer agreement law. That variance was denied because one of the physicians who agreed to serve as a back-up physician was not an OBGYN with full privileges at the hospital. Lawyers for the clinic sent additional information supporting their argument that the physician was qualified. The director of the Department of Health reviewed the request and issued the denial letter we are talking about today.
How can we keep this from happening again?
For several years, Greater Columbus Right to Life has been advocating numerous changes to the law governing ambulatory surgical centers, abortion-pill-only providers, and abortion reporting. One change we have suggested is to revise the director’s directives in 3702.30 (D) either to substitute the word “may” for the word “shall” or to provide a list of other qualifications that an application must meet in order to be approved (such as not being substantially the same as a similar provider shut down by order of law). Such a law could address the revolving door of abortion clinics that have existed not only in Dayton but also in Toledo, Columbus, and Summit County. We estimate that clinics which have been legally reorganized to remain open in the exact same place with a substantially similar staff and management after a serious violation of Ohio law account for 20-25% of all abortions in Ohio.
Why is it so difficult to close an abortion clinic? Why does all of this take so long when there are babies being killed every day? Doesn’t anyone care?
It is incredibly, incredibly frustrating. Administrative law is a complex combination of statutory language and judicial decisions for any state agency, and there have been all kinds of additional accommodations that apply to abortion clinics because of judicial precedent (past decisions). It is very frustrating for those of us who want nothing more than to see the end of the barbaric practice of abortion and work every single day to end it – be that by dismantling the legal protections for it or by helping women who are pregnant in ways so that they make choices for life.
If you want to do something right now to end abortion, consider joining our sidewalk ministry program, especially if you have M-F availability. In the past ten years, five locations that saw a GCRTL prayer presence have either closed permanently or ceased performing or referring for abortions.
Why isn’t GCRTL actively lobbing for better laws?
Until the last decade, we were very actively using our C4 organization to impact the laws, but we were a very small organization with a very small budget. Our leaders realized that while there were a lot of organizations working in Columbus on the laws and lawsuits, there wasn’t anyone in central Ohio working in a grassroots manner to change hearts and minds and culture from womb to tomb. Right now, GCRTL acts as a 501c(3). This means that donations to our organization are tax exempt, but we are limited in the lobbying that we can do. This is also constrained by budget realities. We are a small organization with limited staff and a big mission – in fact, we are trying to hire someone now to help us with the work. If we had the financial or staff resources to commit to public policy, we would tackle these problems as well as become more engaged on the local level. If you’d like to talk to us about how to make that happen, give us a call.
Why does Columbus Right to Life follow a clinic in Dayton?
Part of the GCRTL ongoing commitment to holding surgical abortion clinics accountable, we have been following the situation in Dayton with Women’s Med of Dayton very closely. It is of special interest to those of us in Central Ohio because when the abortion-pill clinics in central Ohio have a botched case and need non-emergency surgical intervention they often send women to Women’s Med in Dayton. It is also a clinic that provides later term abortions and draws women from around the state for that purpose.
In general, though, our clinic accountability project has covered all the abortion clinics in Ohio and we regularly provide research and information to other pro-life groups, public officials, and community members around the state. Our goal has always been to end the barbaric practice of abortion in our community – not just those performed here.
Can I see a copy of the documents you are referring to?
Here is a copy of the denial letter.
Here is a copy of the request for reconsideration.
We regularly obtain these and other documents related to abortion clinics in Ohio through public records requests.