Judge: 2 Ohio abortion clinics may stay open

Posted at 3:41 PM, Sep 30, 2015
and last updated 2015-09-30 15:41:36-04

A federal judge ruled Wednesday that two Ohio abortion clinics, one in Cincinnati and one in Dayton, can stay open while they fight to overturn strict new state laws.

U.S. District Judge Michael Barrett granted a temporary restraining order Wednesday morning that will keep Planned Parenthood of Southwest Ohio’s Mount Auburn clinic and Women’s Med Group’s Kettering clinic open while their lawsuit moves toward trial.

Barrett suggested in his order that Ohio’s strict new abortion law was unconstitutional and banned the state from enforcing it just one day after it took effect.

“Plaintiff has shown (1) a likelihood of success on the merits on at least some of the claims, (2) that it will suffer irreparable harm if an injunction is not issued, and (3) that the balance of harm and the public interest weigh in favor of granting the temporary restraining order,” Barrett wrote.

The temporary restraining order expires on Oct. 13, but the judge can extend it for two weeks. Jennifer Branch, Planned Parenthood's attorney, expects him to rule on a motion for a preliminary injunction sometime in the next two to four weeks.

That injunction would keep the clinics open, and ban the state from enforcing the law, until after the case reaches trial, likely in a year. 

 “The judge has now entered two orders that would prevent the Ohio Department of Health from closing without notice our surgery center that provides safe and legal abortions for women in southwest Ohio. We are open for business as usual," said Jerry Lawson, president and CEO of Planned Parenthood Southwest Ohio.
Ohio law requires surgical clinics to have a patient-transfer agreement with a private hospital, not a public hospital, in order to receive a license to perform abortions. The rule, passed by Republican lawmakers in 2013, does allow for exceptions, or “variances.”

But the newest regulation added to the state budget in June adds a hurdle – variances will be automatically denied if a state health director fails to respond to them within 60 days. This means that a clinic can lose its license if officials simply ignore its request.

This appears to target clinics in Toledo, Dayton and Cincinnati, which are all struggling with variances or transfer agreements, said Kellie Copeland, executive director of NARAL Pro-Choice Ohio.

That rule, which took effect Tuesday, is specifically targeted by the federal lawsuit.

Barrett suggested that it is unconstitutional in his ruling. 

“Plaintiff, at this stage, has shown a likelihood of success on the claim that the automatic suspension provision … is an unconstitutional deprivation of plaintiff’s Fourteenth Amendment right to due process,” Barrett wrote.

The judge wrote that this new regulation automatically suspends the license of any facility whose variance is denied without any prior notice or opportunity to be heard on that denial.

“Patients will also suffer immediate and irreparable harm,” Branch wrote in the amended lawsuit filed by the two clinics on Tuesday.

“Those patients, including patients with already scheduled procedures … tomorrow, will be forced to seek surgical abortions elsewhere, and to travel outside of the Greater Cincinnati area to access care,” she wrote. “The additional travel required to obtain an abortion will increase the costs of the abortion, which is a significant hurdle for plaintiff’s predominantly low-income patients, and will also result in significant delays for women in obtaining care, as well as completely preventing others from accessing care.”

If Planned Parenthood’s Mount Auburn clinic closes, Cincinnati would be the largest metropolitan area in the nation with no access to surgical abortion.

This is the latest twist in a legal battle as abortion clinics fight to stay open while they challenge Ohio’s new abortion laws.

Planned Parenthood and Women’s Med Group filed their first lawsuit on Sept. 1, claiming that Ohio’s abortion laws are unconstitutional.

Before a court hearing could take place on that lawsuit, the Ohio Department of Health revoked the license of the Mount Auburn clinic on Sept. 25, claiming that it needed four back-up doctors instead of three.

Although Planned Parenthood said in court filings that it had never been notified about the need for a fourth doctor, it signed a new contract with an additional doctor on Monday and refiled their application for license renewal on Tuesday.

Because Planned Parenthood’s situation changed so quickly in the past few days -- and it worried about being shut down immediately -- it it filed an amended version of its lawsuit on Tuesday and asked the judge for a temporary restraining order.

In court filings, the Ohio Attorney General’s office said that the state’s new restrictions are meant to protect patient safety.

“The requirement reflects the common sense notion that if a facility cannot demonstrate that it is capable of achieving the important health and safety objectives … the quick and seamless transfer of patients with complications — the facility should not be permitted to continue to perform surgical procedures on patients unless or until it can,” assistant Ohio Attorney General Nicole M. Koppitch wrote.

“If the clinics have their way … facilities that lack an important safety requirement would be permitted to continue to operate and to continue putting patients at risk. It is precisely this concern that the automatic suspension provision seeks to prevent,” Koppitch wrote.

But Branch, who represents the clinics, sees things differently.

“There is no plausible safety or health rationale for immediately suspending an abortion clinic’s license and forcing that clinic to shut down when there is no evidence that the clinic’s continued operation – as they have operated for years -- will pose a risk of harm to patients,” she wrote. “In fact, the immediate shut down of plaintiff’s facility will harm its patients’ health by abruptly forcing these patients to travel significant distances to other providers in order to access abortion services.”