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State Supreme Court considers future of Toledo's last abortion clinic

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    Capital Care Clinic at 1160 West Sylvania Ave.

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    The Capital Care Clinic at 1160 West Sylvania Avenue in Toledo, Ohio on January 11, 2014.

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COLUMBUS — The Ohio Supreme Court Tuesday considered the fate of Toledo’s last abortion clinic in a case watched closely as a test of lawmakers’ incremental restrictions on clinics.

The state wants to revoke Capital Care Network’s operating license on the grounds that it doesn’t have a valid written agreement with a “local” hospital to accept patients in cases of emergency complications.

RELATED: Records show Toledo abortion clinic faces $40K fine | Northwest Ohio's last abortion clinic fights to stay open

“What are the alternatives for women in this area?” Chief Justice Maureen O'Connor asked the state's attorney, Stephen Carney.

“The closest places would be Detroit and Ann Arbor,” Mr. Carney said. “I think it's really ironic that they say Ann Arbor is close enough for an actual emergency, but it shouldn't count for purposes of a regular routine procedure scheduled for next Tuesday.”

But the clinic's Cincinnati attorney, Jennifer Branch, countered that there is more to it.

“Several hundred miles. Two trips. A round trip twice to have an abortion in Ohio (in Columbus or Cleveland)...,” she said. “The danger to those women from an unlawful abortion would be health risks. They could bleed. They could have an infection....You weigh those risks with the benefit. There is no benefit here (with a transfer agreement).”

It could be several months before the court issues its ruling.

Today, Ohio has half the 16 clinics it had a few years ago, a development applauded by abortion rights opponents seeking to further restrict the procedure but challenged by advocates as encroachments on a woman’s constitutional right.

Capital Care in West Toledo is the last abortion clinic in northwest Ohio. Toledo’s other clinic, Center for Choice, closed in 2013 because it also lacked an emergency transfer agreement.

Chief Justice O’Connor focused on the state’s decision to prohibit publicly funded hospitals from entering into agreements with abortion clinics but not with other ambulatory surgical centers that typically fall under the same set of regulations.

In fact, the state has maintained that this isn’t a case about abortion but about a state rule and law that also apply to outpatient dental surgery and laser eye centers.

Capital Care had an agreement in place with the University of Toledo Medical Center, the former Medical College of Ohio, until 2013 when the hospital opted not to renew it. Later, Ohio lawmakers made that a moot point when it implemented the public funding restriction.

The clinic struggled for months to find a hospital willing to take UTMC’s place as multiple Toledo hospitals, several of them religion-based, declined. It reached out as far away as Columbus and Cleveland in hopes of finding a partner. Ultimately, it reached a deal with the University of Michigan Health Center in Ann Harbor, but the Department of Health determined that a hospital more 52 miles away couldn’t qualify as “local.”

Later, lawmakers amended state law to specifically define “local” as being a facility within a 30-mile radius.

Capital Care has argued that it its agreement with UMHC is sufficient and that patients could be transferred to the facility via helicopter. In the case of a true emergency, it would call 911 and transfer the patient via ambulance to a local hospital which would be legally obligated to provide treatment with or without a written agreement.

It maintains it has never had to transfer a patient for a true emergency in the 12 years prior to the closure order.

“(The mandate) puts all the power to license abortion providers in the state of Ohio in the hands of the local hospitals and in the hands of local doctors,” Ms. Branch said. “In Toledo, none of them would step forward and enter into a contract with this provider.

“Because of that, they’re being denied their license to provide abortions to the women in northwest Ohio, not because of the (health) director made a decision,” she said. “They’re being denied because the legislature tied his hands.”

The state has countered that the helicopter idea is impractical. Mr. Carney noted that the clinic does not have a contract with the Licking County-based helicopter it has discussed.

Lucas County Common Pleas Court and the Sixth District Court of Appeals have sided with the clinic, blocking the state from enforcing its closure order. That prompted the state’s appeal before the state Supreme Court.

The state has noted that the clinic did not question whether the restrictions constituted an undue burden on a woman’s right to access abortion when it filed its challenge in Lucas County.

“The Sixth District did in its opinion,” Chief Justice O’Connor said.

“They did, and that was incredibly wrong,” Mr. Carney said.

Justice Sharon Kennedy, one of six Republicans on the seven-member bench, recently rejected the clinic’s request that she recuse herself because she spoke at Toledo Right to Life’s annual fund-raising breakfast and legislative briefing fund-raiser in March.

It was her call to make. She asked no questions and made no comment during Tuesday’s arguments.

On Sept. 26, the Supreme Court will hear a second case involving a Cleveland clinic, Preterm, that challenges the emergency transfer agreement mandate as well as other restrictions passed in recent years such a requiring doctors to tell their patients of a fetal heartbeat before performing the procedure.

Contact Jim Provance at: or 614-221-0496.

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