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State counters Capital Care's motion for reconsideration

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    Pro-choice protesters gathered on Monroe Street near ProMedica Toledo Hospital on Feb. 12 to call on ProMedica and St. Luke’s Hospital to sign a transfer agreement with Capital Care Network.

    The Blade/Andy Morrison
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    Volunteer clinic escorts Kristen Robideaux, left, and Laurel Hanson, stand outside the Capital Care Network abortion clinic, 1160 West Sylvania Avenue, Tuesday, February 6, 2017 in Toledo.

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    Capital Care Clinic at 1160 West Sylvania Avenue last March in Toledo, Ohio.

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Despite a newly-signed patient-transfer agreement between Toledo’s last abortion clinic and a local hospital, attorneys for the state believe Capital Care Network should lose its current license and stop performing abortions.

The state argued in a motion Monday that the Ohio Supreme Court should not reconsider a past decision against the clinic and argued the facility should instead have to reapply for its license.

Jennifer Branch, an attorney for Capital Care Network, asked the court earlier this month to reconsider in light of an agreement between the clinic and ProMedica Toledo Hospital, but attorneys for the Ohio Department of Health on Monday said the new document doesn’t change the clinic’s previous noncompliance. 

“The Clinic’s promise to come into compliance now does not change the past,” the state wrote in Monday’s motion. “It rightly lost its old license.”

At issue in the supreme court’s 5-2 decision on Feb. 6 was Capital Care’s lack of a legally-required written transfer agreement with a local hospital.

The court found the Ohio Department of Health was correct in its 2014 order to revoke the clinic’s license to operate an ambulatory surgical center because its agreement with an Ann Arbor hospital 52 miles away didn’t qualify as “local,” and the clinic lacked any agreement for several months. 

The clinic, located at 1160 W. Sylvania Ave., signed a new agreement with ProMedica on Feb. 14. Ms. Branch, in her motion to the court, said the new information should prompt the court to reconsider the case and remand it back to common pleas court. A Lucas County Common Pleas judge and the Sixth District Court of Appeals previously ruled in the clinic’s favor.

Attorneys for the state argued the clinic should instead apply for a new license.

“If the Clinic is now eligible for a license by virtue of the new agreement, it can and should simply apply to the Department for a new license, just as any new surgical clinic can do,” the motion reads. 

Ohio Department of Health spokesman Melanie Amato declined to comment Monday, citing pending litigation. 

Capital Care previously held a transfer agreement with the University of Toledo Medical Center. But in 2013 UTMC, the former Medical College of Ohio hospital, alerted the clinic it would not renew the pact. The same year, Ohio lawmakers banned public hospitals from entering into such agreements.

Ms. Branch, in an email to The Blade on Monday, said the state’s opposition to her motion demonstrates the clinic’s “conundrum” moving forward.

“The State revoked their license because no hospital would give them a transfer agreement. But now that ProMedica has signed a transfer agreement, the State will not reinstate Capital Care’s license,” she wrote. “This whole process is simply unfair and not designed to provide better health care to women.”

Contact Lauren Lindstrom at, 419-724-6154, or on Twitter @lelindstrom.

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