Ohio Supreme Court Rules on Two Abortion Cases

Feb 6, 2018

The Ohio Supreme Court has handed down decisions on two big abortion cases.
Credit JO INGLES / STATEHOUSE NEWS BUREAU

The Ohio Supreme Court has made two big decisions on abortion involving two separate but related cases, by ruling on a case involving one of Ohio’s eight clinics and not ruling in another. 

By a 5-2 split, the Court said the state’s order to shut down Toledo’s only abortion clinic was legal based on a 21-year-old administrative rule and an item in the state budget from five years ago. In September, Steven Carney argued before the Court for the Ohio Department of Health, which shut down the Capital Care Network of Toledo because it did not have a transfer agreement with a nearby hospital, which he called a reasonable requirement that all ambulatory surgical facilities have complied with going back to 1996. “The court can uphold the order based on the rule and avoid all the constitutional attacks upon the statute. Second, if it reaches any of those constitutional issues, the court should find that the statute survives them all and even if it doesn’t, it needs to return to the rule in the end,” Carney said.

The clinic said it had no transfer agreement because of a 2013 budget provision that banned such agreements with public hospitals – though it said it had never needed to transfer a patient to a hospital. Jennifer Branch argued for the clinic against that rule. “It was added in with no debate, no discussion, no transparency. Those are the evils that the drafters of the Ohio Constitution found needed to be avoided,” Branch said.

Justices Terrence O’Donnell, Sharon Kennedy, Patrick Fisher, Pat DeWine and Judy French agreed that the clinic’s operating license could be revoked because the clinic failed to comply with the rule. But disagreeing were the court’s only Democrat, William O’Neill – who’s now left the bench after some controversy over his run for governor – and Maureen O’Connor, the Chief Justice. O’Connor wrote the dissent, saying that the ban on transfer agreements places an undue burden on a woman’s right to obtain an abortion. She also wrote that it’s also unconstitutional because the provision violates the state’s single subject rule for legislation.

Reaction to the ruling
Ohio Right to Life President Mike Gonidakis says overall, the court got it right, though he didn’t have much to say about O’Connor’s dissent. “She’s one of seven votes. Although she carries the title of Chief, her vote is no more, no less important than the five that voted in our favor. Justice O’Connor sided with now-disgraced Bill O’Neill, former justice, so maybe that speaks for itself,” Gonidakis said.

But pro-choice activists say the decision comes from a politicized court. Kellie Copeland with NARAL Pro Choice Ohio notes the U.S. Supreme Court tossed out a Texas law requiring doctors who perform abortions to have admitting privileges at nearby hospitals and requiring clinics to meet the same standards as ambulatory surgical centers. And Copeland says that decision came down a year before arguments on these cases in front of Ohio’s Supreme Court justices. “All but two of them chose to ignore that says that this is politics. One of the justices had spoken at Toledo Right to Life. Others have been endorsed by anti-choice groups,” Copeland said.

Ohio Right to Life says it expects the Toledo clinic to be closed, because it’s operating illegally. But p bro-choice groups are hoping that a variance that could keep the clinic open can be signed by some local doctors and accepted by the Ohio Department of Health.

The other ruling
The Ohio Supreme court also rejected a challenge in a case closely related to this one. Cleveland’s Preterm clinic had argued the ban on transfer agreements between abortion clinics and public hospitals couldn't be put into the 2013 budget because of the single subject rule on legislation passed in Ohio. But the Court said Preterm doesn’t have legal standing to sue, saying it had failed to show it was injured by the legislation. That decision can’t be appealed to a higher court.