By Dave Andrusko
The Ohio Supreme Court agreed Wednesday to hear an appeal from the state to a 6th District Court of Appeals ruling that prevented the Ohio Department of Health from enforcing its 2014 order closing the Capital Care Network.
Writing for the Toledo Blade, Jim Provance reported the vote was 5-2, with “Justices Terrence O’Donnell, Judith French, Sharon Kennedy, Pat DeWine, and Pat Fischer voting without comment to accept the appeal. Chief Justice Maureen O’Connor and Justice William O’Neill dissented.”
Ironically, the High Court’s decision to hear the case came one day after the state’s Pain-Capable Unborn Child Protection Act (which Gov. John Kasich signed in December) took effect-and “without one lawsuit from Planned Parenthood, the ACLU, or any of the other abortion facilities in the state!,” according to Ohio Right to Life.
The story of the Capital Care Network, Toledo’s lone abortion clinic, is long and immensely complicated. The shorthand is that under state law as an ambulatory surgical center, the abortion clinic has to have a written transfer agreement with a “local” hospital in case there are complications.
After the University of Toledo Medical Center, the former Medical College of Ohio, chose not to renew its deal, Capital Care Network could find no local hospital. The abortion clinic then struck an arrangement with the University of Michigan Health System in Ann Arbor, some 52 miles away.
“The state’s health director at the time determined that a hospital 52 miles away did not qualify as ‘local,’ even though that term was not then defined in state law,” Provance wrote. “State lawmakers have since passed, and Gov. John Kasich has signed, a new law defining ‘local’ as being within 30 miles.”
However, the abortion clinic appealed, and Lucas County Common Pleas Judge Myron Duhart held that the state exceeded its regulatory authority. The 6th District Court of Appeals subsequently upheld Judge Duhart, concluding that the state had violated the Supreme Court’s “undue burden” test.
The state, in turn appealed, and yesterday the seven member Ohio Supreme Court agreed to hear its argument.
“The state argues that the lower courts overreached by determining that the closure order unconstitutionally created an undue burden for women seeking abortions,” according to Provance. “The state maintains that issue was not before the courts, and it argues that the rulings affect laws on all ambulatory surgical facilities, not just abortion clinics.”
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