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Ohio appeals court upholds ruling that transfer agreement is unconstitutional

An Ohio appellate court on Friday ruled 3-0 to uphold a lower court decision that found an Ohio regulation requiring abortion clinics to have a patient transfer agreement with a nearby hospital is unconstitutional, the Cleveland Plain Dealer reports.

According to the Plain Dealer, the ruling allows the only abortion clinic in Toledo to stay open (Higgs, Cleveland Plain Dealer, 7/29).

State regulations

Under the state's 2013 budget (HB 59), abortion clinics in the state are required to obtain a transfer agreement with a nearby private hospital. Clinics are prohibited from making such arrangements with public hospitals. In 2015, Ohio Gov. John Kasich (R) signed into law a state budget (HB 64) that includes a provision that would require abortion clinics to arrange a patient transfer agreement with a hospital no more than 30 miles away (Women's Health Policy Report, 7/7/15).

In 2014, Lance Himes, then-interim director at the Ohio Department of Health, signed an adjudication order revoking the license for Capital Care Network, the sole abortion clinic in Toledo. The order was based on a recommendation from a state hearing examiner that the clinic be closed because it does not have a valid emergency transfer agreement with a nearby hospital (Women's Health Policy Report, 7/15/15).

Case background

In 2014, Capital Care sued the state after state officials rejected a written transfer agreement between the provider and University of Michigan Health System, which is about 50 miles from Capital Care. Capital Care said the regulation imposed an undue burden on access to abortion care, unconstitutionally assigned state authority to third parties and violated Ohio's requirement that legislation be limited to a single subject (Cleveland Plain Dealer, 7/29).

In June 2015, Common Pleas Judge Myron Duhart said the health department's order was unconstitutional because the state overreached the limits of its regulatory authority of the clinic. He ruled that the state cannot enact laws that permit hospitals or other third-party institutions to veto women's abortion access. Further, Duhart said the state violated Ohio's single-subject rule by trying to regulate the issue in a proposed state budget.

In July 2015, the Ohio Attorney General Mike DeWine (R) appealed Durhart's ruling (Women's Health Policy Report, 7/15/15).

Appeals court ruling

On Friday, the Ohio Sixth District Court of Appeals affirmed Durhart's decision, ruling that the law imposed an undue burden on the right to access abortion care.

Applying standards set forth in a recent Supreme Court ruling striking down targeted regulations of abortion providers in Texas, the Ohio court found that the Ohio transfer agreement provision imposed a burden on abortion care that outweighs the regulation's purported benefits (Cleveland Plain Dealer, 7/29). The court stated, "The need to transport a patient from Capital Care to a hospital for treatment is just about nonexistent." In contrast, by closing the Toledo clinic, the regulation would force a woman to have to travel for abortion care, which would cause her to incur additional expenses. Further, the court noted that "the influx of these patients to alternate clinics may be onerous and burdensome to the existing patient base" (Harris-Taylor, Toledo Blade, 7/30).

The court also held that the state unconstitutionally delegated state authority in imposing the transfer agreement, because it makes a clinic's ability to comply with state law dependent on a third party's decisions.

In addition, the court agreed that the transfer agreement provision violated the state requirement that limits legislation to a single subject. The court said while a budget bill affects multiple state entities, abortion clinic licensure requirements are not related to the funding appropriations. Thus, according to the court, the inclusion of the transfer agreement provision in the state budget violated the single-subject requirement (Cleveland Plain Dealer, 7/29). The court wrote, "The inclusion of the licensing provision in the budget bill is a clear example of logrolling -- the 'unnatural combination of provisions'" (Toledo Blade, 7/30).


According to a spokesperson for the Ohio attorney general's office, the state has not yet decided whether to appeal the ruling to the state Supreme Court.

Kellie Copeland, executive director for NARAL Pro-Choice Ohio, praised the ruling, saying, "Today's ruling is a common-sense decision, and protects the health of women across Northwest Ohio."

She added that if Ohio appeals the case, the state likely would lose. "The U.S. Supreme Court said if an abortion restriction is burdensome and does not improve care, then it is unconstitutional. Ohio's transfer agreement requirements for abortion providers are burdensome and medically unnecessary," she said (Cleveland Plain Dealer, 7/29).