Tuesday, the Ohio Supreme Court heard a case that could change the face of abortion for the state.
Government attorneys representing the Ohio Department of Health essentially asked the Ohio Supreme Court to override lower court rulings and uphold their own order to shut down Capital Care, Toledo's last abortion clinic.
Ohio has become an unusually aggressive state in attempting to eradicate abortions entirely through various means: One legislator tried to pass the "heartbeat bill" last year — it basically banned abortions as soon as a heartbeat could be heard (usually around 6-8 weeks, which is about when a woman discovers she's pregnant). Gov. John Kasich, a Republican, vetoed it. In 2013, Kasich barred publicly funded hospitals from entering into "transfer agreements" with abortion clinics, which forced many to either shut down because they didn't have one or get creative and find a privately funded hospital that would do so. This likely hampered abortion clinics for a while, but has come up again.
The case before the Ohio Supreme Court now is about these very transfer agreements, and the Columbus Dispatch says pro-lifers in Ohio are calling this "the most significant abortion case in state history." In 2014, the Ohio Department of Health ordered Capital Care to close because it didn't get an agreement with a local hospital to take patients in the event of a medical emergency as the law required. Since Kasich had already banned public hospitals into making these very agreements with abortion clinics, the clinic thought it put an "undue burden" on them and sued.
The state makes the case that transfer agreements are medically necessary and simply part of being precautionary and safe, while Capital Care says they are not a medical necessity and if they are shut down, the closest clinic would be an hour away.
Monday, pro-lifers dropped a smoking gun just before Tuesday's hearing, in the form of a copy of an inspection report where state inspectors say Capital Care Network failed to follow its "medical emergencies policy" after a patient suffered "possible perforation of bowel in cavity" following an abortion a few months ago. The Ohio Department of Health proposed fining the clinic $40,000 for failing to follow transfer patients to a local hospital in case of medical emergency. While it's not technically related to the current case before the court, the Department of Health will make the argument that it's evidence Capital Care is negligent.
Steve Aden, chief legal officer and general counsel for Americans United for Life, said in this case, the abortion lobby is demonstrating "what they really want is as little oversight or regulation as they can get away with." He adds, "Ohio took this step because most Ohioans, like most Americans, don't want to see their tax dollars go to supporting abortion. Generally, if abortion physicians are unsuccessful in getting a transfer agreement with a private hospital, it's because their reputation is known in that community."
Still, that may not be enough. There is already a precedent for this case in the form of a United States Supreme Court ruling. Whole Woman's Health v Hellerstedt is the case that governs, and it's specifically about transfer agreements. The court ruled, 5-3, that regulations about transfer agreements placed an undue burden on this abortion clinic and threw out this regulation. Given this precedent, the Ohio Supreme Court may decide in favor of Capital Care, thus allowing it to continue to remain open.
Aden disagrees: "The Ohio Supreme Court may refer to Hellerstedt, but that decision is so confusing and subjective that it's virtually useless in giving any constitutional direction to another court. Transfer agreements – which the abortion industry has repeatedly urged as the standard of practice – are so much a part of good practice that it would be extremely damaging to women's health to give abortionists a pass on."
Nicole Russell is a contributor to the Washington Examiner's Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator's Young Journalist Award.
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