A Catch-22 in Ohio abortion law came before the state's Supreme Court this week. The case addresses the attempted shutdown of Toledo's only remaining abortion clinic and a pair of state regulations that make it legally impossible for some clinics to stay open, even if they have done nothing wrong.
Ohio has long required all outpatient surgical centers, including abortion clinics, to have a formal transfer agreement with a local hospital. In general, such regulations are pretty pointless, as surgical center patients with complications can be treated at nearby hospitals regardless of whether such an agreement exists. But they didn't post much of a problem for reproductive freedom in Ohio until 2013.
That year, as part of the state's budget bill, legislators forbade public hospitals from entering into transfer agreements with any abortion provider. For Toledo's Capital Care Network, the new rule meant losing its transfer agreement with the University of Toledo Medical Center.
The clinic proceeded to secure a transfer agreement with the University of Michigan Health System, 50 miles away, but it was told this was too far to qualify as local. In 2014, the Ohio Department of Health ordered the clinic to close.
Capital Care Network pushed back with a lawsuit. Two lower courts have sided with the clinic, which has thus far been able to remain open.
At the Supreme Court on Tuesday, justices were interested in whether the clinic's closure would pose an "undue burden" on Ohio women seeking to terminate a pregnancy—a standard often used in judging the constitutionality of state abortion restrictions. Capital Care Network is the only remaining abortion provider in the greater Toledo area, after the city's other clinic was forced to close in 2013 upon losing its transfer agreement with a public hospital.
Assistant Attorney General Stephen P. Carney told the justices that if the Capital Care Network closed, the closest clinics available to women in the Toledo region would be in Detroit or Ann Arbor, Michigan. "Surely you just didn't just say the undue burden is met if we tell women you can't have an abortion in Ohio but you can certainly go to Michigan?" Justice William M. O'Neill replied.
But undue burden isn't really the issue in this case, because Capital Care Network is not challenging the constitutionality of the regulation per se. Rather, it objects to the way it was passed, as part of the state's 2013 budget bill. Under the Ohio Constitution, legislation shall not "contain more than one subject, which shall be clearly expressed in its title." The idea is to ensure transparency and time for public comment and debate.
Capital Care Network lawyers told the Court that passing the transfer agreement ban as part of the budget bill violated this rule, because the regulation "has nothing to do with appropriations." The state contended that it didn't violate the rule, because "it involves how we operate government."
If the state's argument flies, that would seem to negate the entire point of one-subject rule, since any rulemaking the government undertakes could be said to relate to "how we operate government." And at least one justice wasn't having it: "That's a pretty broad statement to say it pertains to the operation of state government," Justice Maureen O'Connor replied.
Publicly funded hospitals in Ohio are not prohibited from contracting with any specific type of outpatient surgical center other than abortion clinics. In 2014, a Cincinnati clinic was forced to close after the new law caused it to lose its transfer agreement with nearby public hospitals and the private Catholic hospitals in the area declined to pick up the slack. The clinic applied for a waiver, which the state denied, leaving the Cincinnati area with only one abortion clinic. The state is currently seeking to shut down the Women's Med Center in Dayton, 45 minutes north of Cincinnati, over the transfer agreement policy also.
Later this month, the Ohio Supreme Court will hear another challenge to the state's abortion laws. At the September 26 hearing, justices will again consider transfer agreement rules, as well as a law requiring doctors to talk to pregnant women about fetal heartbeats before an abortion. The fetal heartbeat requirement was also tucked into a budget bill, this time in 2014.
Ohio's 8th District Court of Appeals ruled that the Cleveland abortion clinic Preterm has the right to file a lawsuit challenging the regulations. The state will argue before the Supreme Court that Preterm was not harmed by the regulations and thus has no standing to sue.