Ohio's high court hears second case challenging abortion rules

9/26/2017

THE BLADE
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COLUMBUS — In a second case in as many weeks, the Ohio Supreme Court Tuesday heard challenges to tougher regulations on abortion clinics that lawmakers slipped into the state budget.

Unlike the Capital Care Network in Toledo, Preterm-Cleveland, Inc. has not been ordered to shut down for lack of a written transfer agreement with a local hospital in the event of a medical emergency.

But it told the justices that the additional regulatory hurdles created by that provision and others inserted into the two-year budget passed in 2013 have or threaten to harm the clinic.

“The General Assembly tucked controversial provisions into a must-pass budget bill at the 11th hour without opportunity for public scrutiny or debate,” said the clinic’s attorney, B. Jessie Hill. “The state cannot defend this conduct on the merits and instead turns to a distortion of traditional standing principles to argue that Preterm, an abortion clinic, is not injured by this constitutional violation.”

Some of the rules in question are the same ones challenged by Capital Care Network, northwest Ohio’s last abortion clinic. It didn’t take long for the justices to bring up the parallels with the Toledo case, which was argued just two weeks ago.

The clinic’s lawsuit claims that inserting provisions related to regulation of abortion facilities rather than government appropriations into the two-year budget violates the single-subject rule designed to keep too many unrelated issues from being packed into a single piece of legislation.

The state, however, argues that the clinic hasn’t shown that it’s been harmed. It pointed to past decisions by the high court that struck lawsuits filed by Ohio citizens challenging the creation of JobsOhio, Gov. John Kasich’s private, non-profit economic development entity, and the expansion of gambling because the challengers could not show they’d been personally harmed by the decisions.

“It is not enough to simply make allegations of injury,” said Ryan L. Richardson, of Ohio Attorney General Mike DeWine’s office. “It must conclusively demonstrate standing…Preterm has to present enough evidence to conclusively demonstrate that it has suffered an injury.

“And with respect to the written transfer agreement, in particular, it has not submitted evidence to demonstrate how its burden compares now with what it did before,” she said.

Preterm has a written transfer agreement with University Hospitals in Cleveland, although it argued that it must now renegotiate and renew that agreement every two years.

The clinic has also challenged provisions that prohibit publicly funded hospitals from entering into such agreements with abortion clinics as well as a provision requiring doctors to test for a fetal heartbeat and, if one is discovered, postpone the abortion for at least 24 hours.

A fourth provision, one that earmarks federal funds to pregnancy centers as alternatives to abortion, is also being challenged along with the others. The clinic, however, has conceded that it can’t show it has been harmed by that one.

The court did not immediately rule.

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