UPDATE: The Ohio Department of Health has granted Planned Parenthood’s Elizabeth Campbell Surgical Center a variance and renewed its license.
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n 1992, the Supreme Court ruled that states cannot enact laws that put “undue burden” on women seeking abortions. For the past two years, conservative lawmakers in Ohio have tested the limits of that ruling. They might have found it.
The state of Ohio could soon force Cincinnati’s last remaining clinic providing abortions to cease the procedure, leaving it the largest metropolitan area in the country without direct access to an abortion clinic. But before that happens, a federal court battle will ensue that could shake recent state restrictions conservative lawmakers have passed to make operating abortion clinics increasingly difficult. The laws require clinics to have agreements with local hospitals but also prohibit state-funded hospitals from entering into those agreements. The restrictions have forced clinics across the state to stop providing abortions. Others, including Cincinnati’s clinic, may soon face the same fate.
Pro-life legislators and activists say the laws are about women’s safety. But clinic supporters say the restrictions violate women’s rights, especially those with low incomes who won’t have access to the care they need in a setting that is comfortable and accessible to them.
Planned Parenthood, which runs the Elizabeth Campbell Surgical Center in Mount Auburn, has filed a civil rights lawsuit against incoming Ohio Department of Health Director Richard Hodges in U.S. District Court over the restrictions.
Neither the ODH nor Planned Parenthood are commenting about the case, though the state has agreed not to take further action against the Mount Auburn clinic until the court rules on its lawsuit.
“I just think we need to follow the law,” Gov. John Kasich has said about the ODH decisions to issue citations to clinics.
But some say those laws are unconstitutional.
“These laws, they’re all over the country,” says University of Cincinnati College of Law professor Verna Williams. “They’re designed to make abortion more difficult for women. For the longest time, the courts were upholding them. But now we’re getting down to the last few clinics in some states, and courts are saying, ‘Wait a minute.’ ”
The new rules have forced five clinics to close or stop providing abortions since 2013, including the Women’s Med Lebanon Road facility, located in Sharonville, which was the Cincinnati area’s only other clinic. That clinic remains open to provide a consultation session Ohio law requires 24 hours before an abortion, but doesn’t perform the actual procedure. Another Women’s Med clinic in Dayton does, but it is also lacking a transfer agreement and at risk of being shuttered. Women’s Med used to be based on Clifton, but moved in 2010.
Pro-life groups say the closures are because the clinics aren’t safe for women.
“Their failure to comply with basic health and safety regulations further demonstrates that Planned Parenthood and Big Abortion do not have women’s best interests at heart,” said Stephanie Ranade Krider, executive director of Ohio Right to Life in a statement the group released last week.
Along with the Cincinnati and Dayton clinics, Capital Care Network in Toledo lacks a transfer agreement. If the clinics close, Ohio will have only five abortion providers in operation, down from 26 in 2011. A sixth, Cleveland Surgi-Center, is licensed and seeking space to relocate.
The western side of Ohio will have no clinics, however, and the closest to Cincinnati will be in Louisville or Columbus, both roughly 100 miles away. And Ohio’s law requiring a 24-hour wait between a mandatory consultation and the actual procedure would force two trips or an overnight stay, a further burden, advocates say.
That could be a nearly insurmountable barrier for low-income women, some say.
Katherine Baxter-Habib is a former community health worker with Americorps who worked in East Price Hill. She says some of the low-income women she served there relied on the services the Planned Parenthood facility provided. Having to leave the city to terminate a pregnancy would present a huge hardship.
“A lot of the women I worked with in East Price Hill hadn’t left Price Hill much in years,” she says. “Just going to Mount Auburn was hard for them. That was a trip. If Planned Parenthood isn’t there for these women, that’s just a huge void.”
Planned Parenthood performed more than 2,600 procedures last year at the Mount Auburn clinic, according to state inspection records.
Distance is a big part of a similar ongoing federal court challenge to abortion restrictions in Texas, where pro-choice advocates filed a lawsuit last summer. The suit says new restrictions on facilities that provide abortions passed by the Texas State Legislature last year will close so many clinics it will make it almost impossible for women in the western half of the state, especially low-income women in places like El-Paso, to have an abortion.
Some of the rules are similar to Ohio’s, including requirements that abortion doctors have admitting privileges with local hospitals. The rules had reduced the number of clinics in the state from 41 to just eight, leaving one out of every six women in the state more than 150 miles from a clinic.
Last month the U.S. Supreme Court, in a brief 5-4 decision, put a stay on two of Texas’ new laws, allowing 13 clinics to stay open or reopen until a lower court makes a full ruling on them.
One of the court’s orders pertained specifically to clinics in the isolated western part of the state, which will be allowed to stay open despite not having admitting privileges.
That may be a signal the court believes distance from a clinic can be an undue burden to women seeking abortions. Meanwhile, clinics in Ohio hang in the balance as Planned Parenthood’s suit starts up.
There are several twists in the Ohio case. Originally, Judge Timothy Black was randomly assigned to hear Planned Parenthood’s suit. Twenty-five years ago, he served on Planned Parenthood’s board, according to a questionnaire he filled out for his Senate confirmation hearing.
Pro-life advocates say he’s biased and should be removed from hearing the suit. Black said he isn’t biased, but on Nov. 18 asked that the case be reassigned to avoid “even an appearance of impropriety.”
On the other side, pro-choice advocates are hitting Hodges, the incoming Department of Health director, who is named in the suit, on his own background. Ohio Revised Code requires ODH’s head to be a doctor or have significant experience with public health.
Hodges previously ran Ohio’s Turnpike Commission, though he has four years experience in hospital administration as well.
Opponents say that’s not enough.
“The nomination of Mr. Hodges puts a clear signal out to Ohioans that these politically motivated attacks on providers will continue,” said pro-choice group Ohio NARAL in a statement Nov. 12.
The Mount Auburn clinic received citations from the state last month because it does not have a transfer agreement with area hospitals as required by a law the Ohio General Assembly passed in 2012. Transfer agreements state that an area hospital will receive patients from a clinic in an emergency. Though emergency rooms will take a patient anyway, supporters of the law, including anti-abortion groups, say it is safer and more professional to have a transfer agreement.
Cincinnati’s clinic did have an agreement with UC Hospital, but lost it last year when another law conservatives slipped into the state’s budget was passed. That law prohibited state-funded hospitals from entering into transfer agreements with abortion providers.
Pro-life groups say that provision keeps taxpayers from subsidizing clinics. Pro choice groups say that it makes it nearly impossible to continue operating as a clinic, since most private hospitals are religiously affiliated and have little financial incentive to enter into the agreements.
“This is a catch-22 totally created by the state and it is unconstitutional,” said Planned Parenthood attorney Al Gerhardstein in a statement.
Clinics can apply for an exception to the rule, called a variance, if they employ three physicians with admitting privileges at a nearby hospital. The state has gone 14 months without responding to the Mount Auburn clinic’s request for a variance.
According to state records, only eight of 135 surgical centers in the state have failed to receive a license, all of them abortion facilities.
Habib says the potential loss of Cincinnati’s last clinic goes beyond the practical need for the facility. It’s also about losing emotional support during a difficult time.
“When you’re finding out that you’re pregnant with an unwanted pregnancy, or you’ve had a traumatic event that has led to that circumstance, finding a safe space can be incredibly difficult,” she says. ©
This article appears in Nov 19-25, 2014.
