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鈥檚 eight clinics and not ruling in another.
By a 5-2 split, the Court said based on a 21-year-old administrative rule and an item in the state budget from five years ago. In September, Steven Carney 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. 鈥淭he 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鈥檛, it needs to return to the rule in the end,鈥� Carney said.
The clinic said it had no transfer agreement because of a 2013 budget provision that banned such agreements with public hospitals 鈥� though it said it had never needed to transfer a patient to a hospital. Jennifer Branch argued for the clinic against that rule. 鈥淚t 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,鈥� Branch said.
Justices Terrence O鈥橠onnell, Sharon Kennedy, Patrick Fisher, Pat DeWine and Judy French agreed that the clinic鈥檚 operating license could be revoked because the clinic failed to comply with the rule. But disagreeing were the court鈥檚 only Democrat, William O鈥橬eill 鈥� who鈥檚 now left the bench after some controversy over his run for governor 鈥� and Maureen O鈥機onnor, the Chief Justice. O鈥機onnor wrote the dissent, saying that the ban on transfer agreements places an undue burden on a woman鈥檚 right to obtain an abortion. She also wrote that it鈥檚 also unconstitutional because the provision violates the state鈥檚 single subject rule for legislation.
Ohio Right to Life President Mike Gonidakis says overall, the court got it right, though he didn鈥檛 have much to say about O鈥機onnor鈥檚 dissent. 鈥淪he鈥檚 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鈥機onnor sided with now-disgraced Bill O鈥橬eill, former justice, so maybe that speaks for itself,鈥� 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鈥檚 Supreme Court justices. 鈥淎ll 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,鈥� Copeland said.
Ohio Right to Life says it expects the Toledo clinic to be closed, because it鈥檚 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 Ohio Supreme court also rejected a challenge in a case closely related to this one. 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鈥檛 have legal standing to sue, saying it had failed to show it was injured by the legislation. That decision can鈥檛 be appealed to a higher court.
