Ohio Supreme Court agrees to hear Toledo abortion case

COLUMBUS — The Ohio Supreme Court on Wednesday agreed to consider the state’s appeal of last year’s decision blocking it from shuttering Toledo’s last abortion clinic because it lacks an emergency transfer agreement with a “local” hospital.

By a vote of 5-2, the high court agreed to hear the Capital Care Network case.

Capital Care Clinic on West Sylvania Avenue is Toledo's last operating abortion clinic.

Justices Terrence O’Donnell, Judith French, Sharon Kennedy, Pat DeWine, and Pat Fischer voted without comment to accept the appeal. Chief Justice Maureen O’Connor and Justice William O’Neill dissented.

The 6th District Court of Appeals had upheld a ruling from Lucas County Common Pleas Judge Myron Duhart preventing the Ohio Department of Health from enforcing its 2014 order for the clinic to close.

The clinic had scrambled to find a hospital willing to agree to a written transfer agreement after the University of Toledo Medical Center, the former Medical College of Ohio, opted not to renew its deal. After facing rejection from local hospitals and others elsewhere in Ohio, Capital Care entered into an agreement with the University of Michigan Health System in Ann Arbor.

The state’s health director at the time determined that a hospital 52 miles away did not qualify as “local,” even though that term was not then defined in state law. State lawmakers have since passed, and Gov. John Kasich has signed, a new law defining “local” as being within 30 miles.

They have also limited the pool of potential partners for such clinics by prohibiting publicly funded hospitals from entering into such agreements with “ambulatory surgical centers,” including abortion clinics.

The 6th District found that the state had violated the “undue burden” test set by the U.S. Supreme Court. If Capital Care were shuttered, women would have to travel to clinics in Cleveland, Columbus, or Detroit to obtain abortions, it said.

Last summer, the U.S. Supreme Court struck down somewhat similar restrictions enacted by Texas on abortion clinics. But the Texas laws were not identical to Ohio’s, so battles continue here in state and federal courts.

In its appeal, Attorney General Mike DeWine’s office noted that the state determined a 52-mile distance between the clinic at 1160 W. Sylvania Ave. in Toledo and the Ann Arbor hospital was too great to ensure patient safety.

“The clinic’s director testified that it could use a helicopter that would come from outside Columbus, but conceded that it had no such arrangement in place,” the motion read. “She said that it had no helipad, but that a nearby parking lot would usually have enough free space to land.”

The state argues that the lower courts overreached by determining that the closure order unconstitutionally created an undue burden for women seeking abortions. The state maintains that issue was not before the courts, and it argues that the rulings affect laws on all ambulatory surgical facilities, not just abortion clinics.

The clinic’s Cincinnati attorney, Jennifer Branch, has noted that Capital Care has never needed to transfer a patient since its creation in 2002. And if it did, any hospital would be legally required to treat a patient in an emergency regardless of whether there was a written agreement in place, she argued.

“The State is concerned, after the Sixth District stuck down [House Bill] 59, and after the U.S. Supreme Court’s struck down Texas’ ...rules as creating an undue burden on abortion clinics, whether [the state’s] rule creates an undue burden on Capital Care and other Ohio surgical abortion providers,” she wrote.

“The state’s concerns are understandable, but not ripe for this court to decide in this case,” Ms. Branch wrote. “That is an issue for another case, on another day.”

Ohio has nine abortion clinics, down from 16. Several are involved in litigation.

The decision to hear the case came one day after the state’s latest law restricting abortions took effect. It bans most abortions after 20 weeks of pregnancy. Mr. Kasich signed the bill at the same time that he vetoed a separate measure that would have banned nearly all abortions once a fetal heartbeat is detectable, as early as six weeks of gestation.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.