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Ohio AG appeals ruling that allows Toledo's only abortion clinic to remain open

September 14, 2016 — Ohio Attorney General Mike DeWine on Monday appealed a ruling from the Ohio Sixth District Court of Appeals that allows the sole abortion clinic in Toledo to remain in operation, the Cleveland Plain Dealer reports (Higgs, Cleveland Plain Dealer, 9/12).

State regulations

Under the state's 2013 budget (HB 59), abortion clinics in the state are required to obtain a transfer agreement with a nearby private hospital. Clinics are prohibited from making such arrangements with public hospitals. In 2015, Ohio Gov. John Kasich signed into law a state budget (HB 64) that includes a provision that would require abortion clinics to arrange a patient transfer agreement with a hospital no more than 30 miles away.

In 2014, Lance Himes, then-interim director at the Ohio Department of Health, signed an adjudication order revoking the license for Capital Care Network, the sole abortion clinic in Toledo. The order was based on a recommendation from a state hearing examiner that the clinic be closed because it does not have a valid emergency transfer agreement with a nearby hospital (Women's Health Policy Report, 7/15/15).

Legal background

In 2014, Capital Care sued the state after state officials rejected a written transfer agreement between the provider and University of Michigan Health System, which is about 50 miles from Capital Care. Capital Care said the regulation imposed an undue burden on access to abortion care, unconstitutionally assigned state authority to third parties and violated Ohio's requirement that legislation be limited to a single subject.

In June 2015, Common Pleas Judge Myron Duhart said the health department's order was unconstitutional because the state overreached the limits of its regulatory authority of the clinic. He ruled that the state cannot enact laws that permit hospitals or other third-party institutions to veto women's abortion access. Further, Duhart said the state violated Ohio's single-subject rule by trying to regulate the issue in a proposed state budget.

DeWine appealed the ruling later that year and in July 2016, the appellate court affirmed Durhart's decision. Applying standards set forth in a recent Supreme Court ruling striking down targeted regulations of abortion providers in Texas, the appeals court found that the Ohio transfer agreement provision imposed a burden on abortion care that outweighs the regulation's purported benefits. The court also held that the state unconstitutionally delegated state authority in imposing the transfer agreement, because it makes a clinic's ability to comply with state law dependent on a third party's decisions. Further, the court agreed that the transfer agreement provision violated the state requirement that limits legislation to a single subject (Women's Health Policy Report, 8/1).

Latest developments

On Monday, DeWine appealed the Sixth Circuit's decision to the state Supreme Court.

Kellie Copeland, executive director of NARAL Pro-Choice Ohio, denounced DeWine's decision. Calling the move a tactic that "put[s] politics before women['s] health," Copeland said, "Toledo's last abortion clinic is a critical resource for women across Northwest, Ohio. [DeWine's] ongoing campaign to close Capital Care is a waste of taxpayer dollars and an effort to support an unconstitutional restriction on doctors" (Candisky, "The Daily Briefing," Columbus Dispatch, 9/12).