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An Ohio law restricting the conditions under which women and pregnant minors can get abortions is still on hold, more than seven years after it was passed.
U.S. District Judge Sandra Beckwith ruled Sept. 8 against Cincinnati Women's Services, an abortion clinic that had sought to block the law on constitutional grounds.
"Plaintiffs' evidence does not demonstrate that H.B. 421 imposes undue burdens on the abortion right even when viewed in a highly deferential manner," Beckwith wrote.
The court initially dissolved a temporary stay that has kept the law from taking effect, but later agreed to delay its order for two weeks. Clinics were to achieve compliance with new restrictions by Sept. 22, but Cincinnati attorney Al Gerhardstein has appealed to the 6th U.S. Circuit Court of Appeals. For now the law still remains on hold.
But State Solicitor Doug Cole called the latest stay a stopgap measure, "not a stay that will remain in place throughout the appeal."
'I won't do it'
The temporary reprieve wasn't enough to keep Cincinnati Women's Services open. The clinic's workers had already stopped scheduling appointments Sept. 23 and were instead packing boxes, planning to shutter the clinic until the appeals process is finished.
Passed in 1998, Ohio House Bill 421 (www.legislature.state.oh.us/bills.cfm?ID=122_HB_421) requires women and minors to meet physicians face to face for "informed consent visits" at least 24 hours prior to abortions.
H.B. 421 also tells minors to obtain parental consent, not just notify a parent, and minors will have only one chance to ask a judge to bypass the requirement for parental consent. The law would also prevent minors from using evidence of physical or emotional abuse to obtain relief from parental consent requirements.
"The law poses a very real threat to the health and freedom of abused women, poor women and minors," says Gerhardstein, attorney for the American Civil Liberties Union (ACLU). "It places a hurdle in the path of these women who have unwanted pregnancies, hurdles that rich women can overcome without batting an eye."
The ACLU sued on behalf of Debi Jackson, owner of Cincinnati Women's Services. Jackson estimates the new restrictions would have added as much as 25 percent to the cost of abortion procedures at her clinic and could have increased delays in appointments by as much as two weeks.
"H.B. 421 serves large providers," Gerhardstein says. "Small providers get squeezed."
Jackson cites recent huge increases in the cost of medical malpractice insurance as the biggest financial factor affecting her clinic. Even with higher insurance premiums and increased costs associated with the new law, the clinic could have stayed open but Jackson decided to close.
"I refuse to turn Cincinnati Women's Services into an abortion mill, and that is what this law would make us do," she says.
Since 1994 Cincinnati Women's Services has developed a complex, women-centered approach to patient advocacy that Jackson calls "connecting the head and the heart." Patient advocates consulted with each client for up to two hours prior to their abortions, encouraging clients to directly confront the most uncomfortable abortion issue, killing an unborn life.
"I would rather ask 'squirmy' questions when a woman can still change her mind," Jackson says.
Patient advocates personalized the decision and avoided clinical language, preferring the word "baby" to fetus. They used techniques such as asking patients to pull against advocates on the other end of a thick, knotted rope to indicate how strongly they wanted to end pregnancies.
"Some patients have pulled me out of my chair," says Jackson, a large woman. "But some barely hold the rope, telling me in this way that they have not fully confronted their decision."
Probing, individualized advocacy for choice at Cincinnati Women's Services had been the standard of care, and it would have been undermined by the hard-edged, arbitrary rules H.B. 421 was set to force the clinic to operate under.
"I won't do it," Jackson says. "Women deserve more. There are women who would rather kill than wound. They would rather kill this unborn life than bring a child into a world that cannot support them."
'A significant fraction'
Huge numbers of women face unwanted pregnancies during their lifetimes. Most women are fertile for 40 years of their lives, with the chance of becoming pregnant in all 12 months during most of those 40 years. Jackson says that since abortion became legal in 1973 between one-third and one-half of all women had abortions by age 40.
Requiring women to schedule face-to-face physician visits 24 hours prior to an abortion serves no medical necessity, according to Gerhardstein.
"No good rationale exists for it," he says. "No research nor medical studies show that face-to-face visits will affect the health of these women."
Cincinnati Women's Services offered a standard of care that might not otherwise be available, he says.
"Debi has served the under-served women with no insurance, no medical cards and not much money left, often because they are already caring for other children," Gerhardstein says. "These are very often women for whom everyone else comes first. Their own needs come last."
Jackson says her clinic's billing standards were "very liberal, with standard discounts for Medicare patients, women on disability and anyone who's struggling financially." The clinic was 100 percent self-pay, accepting no medical insurance payments or third-party reimbursements of any kind.
Beckwith called Cincinnati Women's Services' claims speculative and ruled that, even if true, they didn't place "undue burden" upon women or minors seeking abortions. The court determined that the number of women who would be prevented from obtaining abortions wouldn't represent a "significant fraction" of women.
Gerhardstein was surprised at the ruling, saying the court had discounted the proof and labeled as speculation what others would have called reasonable inference.
"If our proof is speculation, then no facial challenge can survive," he says.
In granting Gerhardstein's motion for a stay pending appeal, the 6th Circuit Court noted "the fact that the enforcement of H.B. 421 has been enjoined for over seven years by mutual consent of the parties" justified another temporary delay as the motion is considered.
Ohio Attorney General Jim Petro is fighting to enforce H.B. 421. He says the provision requiring minors to obtain parental consent for abortion fully complies with U.S. Supreme Court precedent and new informed-consent requirements comply with "normal standards of care for surgery."
Petro, pleased with his victory in district court, plans to contest the appeal.
"We will urge the appeals court to prevent any further delay in the implementation of this law and its provisions for parental consent and informed consent," Petro says. "Seven years is long enough." © bowl's brass handles create wavelets and jumping water.
