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Ohio Supreme Court Considers Abortion Case That Could Have Big Consequences

Abortion rights supporters outside Ohio Supreme Court building
Jo Ingles
Ohio Public Radio
Abortion rights supporters outside Ohio Supreme Court building.

The state’s highest court has heard arguments about whether to keep open Toledo's only abortion clinic. And the case could affect Ohio's seven other clinics as well.

State lawmakers have passed bills in recent years that make it harder for abortion clinics to operate. And the state budget approved in 2013 included a big change for abortion clinics and their relationships with hospitals. It was controversial and set lawmakers far apart - as was evident in floor speeches given by Democratic Sen. Charleta Tavares and Republican Sen. Peggy Lehner.

"You're destroying health care for women, and as a woman, I'm offended," Tavares said.

"I find the loss of 50 million unborn children something that we should all be concerned about," Lehner replied.

The change was this - that ambulatory surgical facilities needed agreements with hospitals outlining details for taking in patients when more medical care is needed.

That covered surgery centers that do things like eye or plastic surgery or abortion. But when lawmakers tucked that transfer agreement provision into the 2013 budget, they also mandated that no public hospital can enter into such an agreement with clinics that provide abortions.

In Toledo, none of the local hospitals or medical facilities could or would enter into an agreement with Capital Care Center, the only abortion provider in that city. So that abortion clinic signed on to a transfer agreement with a nearby Michigan hospital.

The state concluded that was too far away and in 2014, the Ohio Department of Health ordered the clinic to close. Two lower courts have ruled the clinic could stay open. And now it’s up to the Ohio Supreme Court to decide the case.

Jennifer Branch represents Capital Care Center of Toledo. She says women are being denied their rights because all of the power is in the hands of local doctors and hospitals who are either under law or under political pressure to deny a transfer agreement.

“In Toledo, none of them would step forward to enter into a contract with this provider. Because of that, they are being denied their license to provide abortions to the women in Northwest Ohio,” Branch said.

But Stephen Carney, the attorney for the state, said the law doesn’t treat clinics differently and blames this clinic for not pursuing an option that could help it stay open.

“There is one area of law that is specific – undue burden. We have a test for that. We have a process for that. They deliberately didn’t use that and we shouldn’t shoehorn that in now,” Carney explained.

Outside the court building after the hearing, opponents of abortion prepared a lectern to speak to the media. Supporters of abortion rights horned in – literally – by chanting in a bullhorn and unveiling banners in the background.

NARAL Pro Choice Ohio’s Kellie Copeland says she thinks attorneys for the abortion clinic made their case.

“It’s clear that the state of Ohio has discriminated against abortion providers simply because that is the type of health care they provide. And certain politicians in the Statehouse and Governor Kasich disagree so they have perpetrated a witch hunt against abortion providers through regulatory abuse,” Copeland said.

Copeland isn’t declaring victory though. She’s concerned because all but one justice on the Ohio Supreme Court are Republicans who have support from abortion opponents.

“We asked one of the justices to recuse herself because she spoke at the breakfast of Toledo Right to Life who had a major role in this regulatory scheme being enacted. So obviously, we think that there’s a bias on the court. The court should rise above that and do what’s right,” Copeland said.

That justice, Sharon Kennedy, declined to step off the bench for the case, saying she reviewed the request that she recuse herself and found it "without merit." Kennedy asked no questions and made no remarks during the arguments.

Mike Gonidakis, president of Ohio Right to Life, says the restrictions in question are constitutional. And he says it’s important to remember lawmakers are doing the will of Ohio voters who elected them.

“What our legislature has done is a clear example of elections have consequences. If you elect a pro-life legislature and a pro-life Governor, you’re going to get pro-life laws. We are at our lowest level in our state’s history. We went from 16 abortion clinics. We are at seven now. Hopefully, we will drop it two more if we can get the Supreme Court to rule in our favor,” Gonadakis said.

Beth Vanderkooi, executive director of Greater Columbus Area Right to Life, says patient safety needs to be the top priority, and that abortion clinics are not victims.

“I’m so tired of this narrative that we are just picking on these poor abortion clinics,” she explained.

The ruling from the Republican dominated Court could affect not only the facility in Toledo but the remaining seven clinics in Ohio, which all have to have transfer agreements as well. Ohio has half the number of abortion clinics it had in 2010 when Republicans won the governor's office and majorities in the Statehouse and the Supreme Court.

Jo Ingles is a professional journalist who covers politics and Ohio government for the Ohio Public Radio and Television for the Ohio Public Radio and Television Statehouse News Bureau. She reports on issues of importance to Ohioans including education, legislation, politics, and life and death issues such as capital punishment.