Bullied By the State, Toledo Abortion Clinic Takes Its Fight to Remain Open to the Ohio Supreme Court

The Capital Care Network was ordered to close in 2014. Instead, it took the state to court.


Capital Care Network/Facebook

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.

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  1. So, we’re suddenly concerned about whether the intended consequences of regulation are burdensome–because it’s abortion this time?

    Could we get rid of ObamaCare if only we could prove, somehow, that it was burdensome to LGBTQI+ or women seeking abortions?

    I understand mowing over the religious rights of nuns wasn’t enough to stop ObamaCare, but if it made it hard for women to get an abortion or LGBTQI+ to celebrate their marriages somehow, then maybe . . .

    1. Who’s we with regard to this sudden concern?

      1. Americans.

        Are you an American?

        1. Curious that this snarky outrage always seems to be directed one way.

    2. Abortion is one of those area’s where natural rights come into conflict, therefore legislation is necessary. Obvious at face value, I’d think.

      A blanket ban that only respects one parties interest in that conflict, that of the unborn child, is not really acceptable even while I find it personally reprehensible.

      Sometimes freedom’s aren’t popular, even to those who claim to value freedom.

      1. I should point out that one of the things I’m ‘for’ in this arena is no tax dollars to organizations that provide abortions, period. It seems absolutely fair to me that if you’re going to have an abortion, the funds should come from either your own pocket or a non-profit that is formed to assist you, but public dollars should in no way, shape, or form be involved in that process.

        That’s really my only concrete opinion on the matter.

        1. RE: “I should point out that one of the things I’m ‘for’ in this arena is no tax dollars to organizations that provide abortions, period. … If you’re going to have an abortion, the funds should come from either your own pocket or a non-profit that is formed to assist you, …”

          The problem is:

          If we don’t provide abortions for indigent women who have no money to pay for their own abortions, then we will end up paying MUCH MORE for those women’s birthing-care. Or, if we go total-libertarian and say no public money for abortions OR for birthing care, then we’ll have women giving birth in the gutter, and we’ll get hit with all kinds of birth-defects and birthing injuries.

  2. Oh boy, here we go.

    [straps in]

  3. Ohio has long required all outpatient surgical centers, including abortion clinics, to have a formal transfer agreement with a local hospital.

    That year, as part of the state’s budget bill, legislators forbade public hospitals from entering into transfer agreements with any abortion provider.

    So…. let me get this straight. They required abortion clinics to have a transfer agreement with a local hospital, and then banned all public hospitals from having transfer agreements with abortion clinics.

    This strikes me as a pretty clear-cut case of bad faith on the part of legislators, and I expect the law to be swiftly struck down.

    1. Bad faith on the part of legislators in crafting regulation?

      Here in the United States of America?!!

      When did this start?

      Wasn’t it in 1789?

      You care because it’s about abortion.

      The codes of every city, county, the regulations of every state, and the regulations of our federal government are all riddled with such bad faith contradictions.

      You care this time because it’s about abortion.

      If such regulations were implemented in California protecting illegal immigrants from deportation, you’d think they were great.

      It’s side over principle with you, or, rather, you think the principle is free access to abortion.

      I doubt you give a damn about the state of conflicting regulations when it doesn’t impact your favorite side of whatever issue. In fact, if the conflicting regulations were good for your favorite side, I suspect you’d champion them and denigrate the concerns of people who questioned whether the regulation were written in bad faith.

        1. I’m flattered, but I don’t swing that way.

          1. I’m flattered

            You should be.

            but I don’t swing that way.

            No one believes you.

      1. I care this time because that is what the article is about. If the article was about another issue being unduly burdensome, then I would care about that issue. I am personally pro-life (and not because a three-eyed spaghetti monster in the sky told me so), but I am also pro-choice because that is a decision to be left between the mother and father and no one else. From your posts on this subject, I get the sense you are against unduly burdensome regulations UNLESS they deal with abortion, and then you are for them.

        1. “…personally pro-life…”

          Does this mean you think abortion is in some way bad, but not bad in such a way as to threaten anyone’s human rights?

          A key basis of cricitizing abortion is that it violates the human rights of the fetus…I presume you don’t take this position because then you’d be for enforcing the fetus’s rights.

          Perhaps you mean it’s bad because it encourages promiscuity, but that encouraging promiscuity shouldn’t be a crime?

    2. They also said that an agreement with the nearest non-public hospital wouldn’t work because it was too far away.

      Who would have thought that politicians could abuse freedom by taking regulations that seem benign individually and interlocking them?

  4. Kermit Gosnel, call your office.

  5. “Pregnent” women? Jesus H. Christ.

  6. Abortion opponents believe that children are being murdered, which makes them determined and devious in their crusade. I don’t KNOW what abortion proponents believe that makes them so determined, though I suspect that it is a firm belief that Brown women should have access to abortion, because they don’t like Brown people very much (though they pretend otherwise) and wish there were fewer of them. Of the two groups, I have found the abortion opponents less unpleasant. Slightly.

    That said, I think abortion should be legal. I also think that, except for a few places like Nevada, it won’t be in my lifetime.


    1. The simple fact is this:

      Government is totally useless if it doesn’t bring murderers to something approaching “justice”. If they failed to do that, nothing else is needed to show that they are completely worthless.

      Unfortunately, that means that the word “murder” needs to be defined… and as government is want to do, they’ve defined unborn (or unviable, whatever) humans to be something you can murder and something you cannot murder. Causing a miscarriage is murder if someone else does it and not if the carrier does it.

      Now, I’m happy saying that government isn’t competent to define what “murder” means, but that’s because government is absolutely incompetent and that’s why I’m an An-Cap. The problem is, if the argument becomes one of “We can’t know who murder protects with any certainty”, then you need to get rid of government immediately (see my first paragraph).

  7. The state laws seems to violate the rational basis test under constitutional legal analysis. The state first required all clinics to obtain an admittance agreement on the purported basis that such agreements serve a public safety interest (as noted in article this itself being a dubious assertion) but then the state interferes in the pursuit of that public safety goal by prohibiting state hospitals from entering such agreements.

    1. It seems they also have a public policy against making taxpayers pay for abortions – which they would if abortions were done at public hospitals.

  8. “make it legally impossible for some clinics to stay open, even if they have done nothing wrong.”

    You mean, even if they don’t perform abortions?

  9. “Bullied By the State”

    Hmmm…are you sure that “why don’t you pick on someone your own size” is a line of argument abortion clinics should be adopting?

  10. Coming soon: nail salons will be required to have transfer agreements with local hospitals! A botched manicure can get infected and kill you. We need the nail salons to be ready to handle an emergency.

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