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Ohio Gov. signs 20-week abortion ban; Judge says Dayton clinic can stay open pending appeal in license dispute

December 15, 2016 — Ohio Gov. John Kasich (R) on Tuesday signed a bill (SB 127) that will ban abortion care at 20 weeks of pregnancy, the New York Times reports.

Kasich on Tuesday also vetoed a measure (HB 493) that would have banned abortion care as early as six weeks. While Kasich acknowledged that the six-week ban was "clearly contrary to the Supreme Court's current rulings on abortion," he claimed the 20-week ban was "legally sound" (Stolberg, New York Times, 12/13). According to Rewire, courts have deemed both the six-week and 20-week bans unconstitutional (Wilson, Rewire, 12/13).

Lawmakers could potentially override Kasich's veto of the six-week ban, the Washington Post reports. The override would require a three-fifths majority in each chamber of the state Legislature (Somashekhar, Washington Post, 12/13).

Details on 20-week abortion ban

The 20-week abortion ban does not include exceptions for instances of rape or incest. It includes a limited exception when the woman's life is in danger (Women's Health Policy Report, 12/9). The law also creates a fund for the state to use to defend the measure in court (Rewire, 12/13).

Kasich's signature makes Ohio the 18th state to enact such a ban (New York Times, 12/13). However, courts have struck down similar 20-week abortion bans in Arizona and Idaho as unconstitutional (Women's Health Policy Report, 12/9).

The law is set to take effect 90 days after Kasich signed it.

Abortion-rights advocates expected to challenge bill

According to the Times, the American Civil Liberties Union (ACLU) of Ohio is expected to file a lawsuit against the 20-week ban. ACLU of Ohio on Tuesday said the measure is "unconstitutional and will harm women and families."

Separately, Gabriel Mann, a spokesperson for NARAL Pro-Choice Ohio, said, "There's no way we're going to take this lying down." He added, "It's too horrific of a restriction for women who are facing medical complications and situations where they need an abortion around that 20-week period" (New York Times, 12/13).

Comments

Kellie Copeland, executive director of NARAL Pro-Choice Ohio, lambasted Kasich's decision to sign the 20-week abortion ban. "John Kasich is treating women's health care like a game," she said, adding, "He thinks that by vetoing one abortion ban Ohioans will not notice that he has signed another. The 20-week abortion ban callously disregards the unique circumstances that surround a woman's pregnancy" (Palmer, Reuters, 12/13).

Copeland continued, "Kasich's actions today will fall hardest on low-income women, women of color, and young women." She said, "History will not judge Gov. Kasich's disregard for women's health kindly" (Rewire, 12/13).

Dayton clinic can remain open pending license dispute appeal

In related news, an Ohio judge on Monday ruled that Women's Med Center of Dayton can stay open while it appeals state officials' decision to revoke its operating license, the Dayton Daily News reports.

According to the Daily News, the appeal is expected to span at least a year (Wedell, Dayton Daily News, 12/13).

Background

Ohio's 2014-2015 budget (HB 59) included a requirement for abortion clinics in the state to have a patient transfer agreement with a hospital. Public hospitals are prohibited from entering into such agreements with abortion clinics. Kasich last year signed a state budget (HB 64) that required abortion clinics to arrange a patient transfer agreement with a hospital no more than 30 miles away or request a variance from the requirement.

The law also requires the state health director to grant or deny a clinic's variance request within 60 days. Clinics unable to obtain a variance within 60 days are required to close, although they are permitted to reopen if they obtain approval at a later time. If the clinic's variance request is denied, its operating license is automatically suspended.

An Ohio court found the state's application of the requirement to another clinic, Capital Care, to be unconstitutional. An appeals court upheld the ruling.

In October, the Ohio Department of Health (ODH) denied Women's Med's variance request.

ODH last year told Dayton Women's Med that it must have contracts with at least three physicians. The clinic's latest application included three contracts, but Ohio Director of Health Richard Hodges denied the request, claiming that the contracts did not "provide the same level of patient health and safety that a written transfer agreement with a local hospital assures for 24/7 backup coverage."

The clinic appealed the revocation order in Montgomery County Common Pleas Court. Noting that it had met the law's requirements by contracting with three back-up physicians, the clinic contended that the state's order was arbitrary. Lawyers for Women's Med also requested an emergency motion to stay the order, which would enable the clinic to remain in operation pending a decision in the lawsuit (Women's Health Policy Report, 12/5).

Latest developments

On Monday, Montgomery County Common Pleas Judge Mary Wiseman issued a stay against the revocation decision. The stay allows the clinic to remain open pending the appeal.

In the order, Wiseman noted that closing the facility during the appeal would harm the clinic's patients. She wrote, "Dayton area women seeking [an abortion procedure] no longer will have access to that procedure locally, and the financial circumstances of many prospective patients may mean that they effectively are foreclosed from obtaining such services at all."

In addition, Wiseman said that the clinic's closure would pose undue hardship on its owner, Martin Haskell. Wiseman stated, "Dr. Haskell's undisputed affidavit credibly attests that if WMCD's surgery center were to be 'mothball(ed)' throughout this appeal, the cost of later re-staffing and reopening the clinic would be prohibitive."

Further, Wiseman noted that the state has taken several years to process the clinic's variance requests and said there is no evidence that the clinic is unsafe. "No risk to public health will arise from the surgery center's continued operation that has not existed throughout the entire four years that WMCD's 2012 request for a variance was pending," Wiseman wrote (Dayton Daily News, 12/13).