ACLU challenges abortion-related restrictions in new state budget

Felix Falco Plouck, 4, the son of a Cabinet member, helps Ohio Gov. John Kasich sign the state's $62 billion, two-year budget on June 30 in Columbus, Ohio. Kasich is flanked by, state Sen. Keith Faber, left, and House Finance Chairman Ron Amstutz, right.

COLUMBUS — The American Civil Liberties Union of Ohio today challenged the constitutionality of new abortion-related restrictions passed in the new state budget.

The suit contends that the changes violate a state constitutional provision prohibiting lawmakers from slipping unrelated issues into one law, in this case the $62 billion, two-year budget. The litigation was filed on behalf of Preterm, a Cleveland women’s health clinic.

But even if successful, it remains to be seen how it might affect Toledo’s second and last abortion clinic, Capital Care Network, that may be forced to close under a state administrative rule that served as inspiration for the state law now being challenged.

The suit asks Cuyahoga County Common Pleas Court to issue a permanent injunction blocking enforcement of the provisions. Whatever happens at that level, the attorneys behind it expect it to work its way up to the Ohio Supreme Court.

At issue are:

— A prohibition on hospitals that receive public funding from entering into emergency care agreements with abortion clinics.

— A mandate that doctors test for a fetal heartbeat on a patient seeking an abortion and advise that patient of the statistical probability of carrying the fetus to full term.

— Creation of a new program using federal welfare dollars to provide adoption and parenting assistance programs that are barred from mentioning abortion.

Susan Scheutzow, an outside attorney working with the ACLU on the case, said Preterm has already been affected by the new provision requiring that doctors perform an external ultrasound to test for the heartbeat and then offer to let the patient see or hear that heartbeat.

“A law has been put in place that mandates information be given to a woman seeking an abortion,” she said. “They are finding it to be very cruel to give that information to women and very onerous.”

Among the suit’s many plaintiffs are Gov. John Kasich, who signed the law; Attorney General Mike DeWine and the Ohio Department of Health, charged with enforcing it; and members of the Ohio State Medical Board.

Among the board members is Mike Goniddkis, president of Ohio Right to Life, the primary organization that promoted these provisions with lawmakers.

“The lawsuit contradicts itself,” he said, stressing that he was speaking on behalf of Right to Life and not as a defendant.

“The ACLU says the state should be appropriating funds, and then it says it doesn’t like how the funds are appropriated,” he said. “It’s nothing more than a legal stunt that will cost Ohio taxpayers significantly….This isn’t about the Ohio Constitution. It’s about the ability to have abortion on demand. They’re making political statements through a lawsuit. The courts will see through it and dismiss it.”

One of Toledo’s abortion clinics, Center for Choice, closed this summer because it failed to reach an emergency-care agreement with a local hospital as previously required under Department of Health rules.

The budget cemented that administrative rule into state law and then took the additional step of prohibiting a public hospital, or any doctor affiliated with it, from entering into such an agreement. That left only privately-funded hospitals as an option.

Capital Care Network faces the same potential fate as Center for Choice. Although the ACLU lawsuit challenges that provision as added to the budget, it does not challenge the underlying administrative rule.

“If we were to get (the budget provision) struck down, it would be less strict because there wouldn’t be the prohibition on public hospitals,” said Jessie Hill, a Case Western Reserve University law professor working on the case.

But she noted that the University of Toledo decided not to renew its agreement with the clinic before the public hospital prohibition became law. Capital Care Network has been unable since then to find a private hospital to take its place. The clinic is awaiting a state hearing.

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