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Ohio clinics sue to bar new abortion bill

Posted at 6:17 AM, Mar 02, 2022

The following article was originally published in the Ohio Capital Journal and published on under a content-sharing agreement.

A lawsuit has been filed against the newest state abortion restriction and its regulation of doctors’ ability to practice medicine.

The ACLU, Planned Parenthood Southwest Ohio Region and Women’s Med Dayton are asking a Hamilton County Common Pleas Court to keep the state from enforcing a law to create “onerous and unwarranted” restrictions to health care in Southwest Ohio in particular.

The Ohio General Assembly passed Senate Bill 157 in December, and the law is set to be effective March 23, if the court doesn’t fulfill the lawsuit’s request.

If the law goes into effect, doctors who work with state public universities or medical centers will not be allowed to also be affiliated with abortion clinics in the state.

Abortion clinics that conduct surgical abortions are considered “ambulatory surgical facilities,” also the name of other outpatient facilities where procedures can be done.

Clinics who conduct abortions are required to have a “written transfer agreement” with a local hospital to which a patient can be transferred should medical care “beyond the care that can be provided at the ambulatory surgical facility” is needed.

Those hospitals need to be within 30 miles of the facility.

To obtain a variance to the written transfer agreements, doctors are required to have hospital admitting privileges within those 30 miles. But these variance agreements could be made more complicated by this new law, originally pushed by bill sponsors as a way for the Ohio Department of Health to track so-called “failed abortions,” which the state already defines as abortion procedures in which the child is alive when removed from the pregnant person’s body.

So-called “failed abortions” are rare, and state data shows none of the abortions conducted after 19 weeks – still not considered a gestation period when a baby would survive outside of the womb – were on viable pregnancies.

In the new lawsuit, doctors argue not only would the law create constitutional conflicts by singling out abortion providers, but it would also keep physicians from being able to “operate their businesses and pursue their professions,” including caring for their patients.

“Because of SB 157, many patients seeking procedural abortions will be significantly delayed in accessing this vital, time-sensitive and constitutionally-protected health care until later in pregnancy, when the procedure not only carries greater health risks, but is also more expensive,” the lawsuit states.

The Ohio Department of Health already requires abortion clinics to have at least four backup physicians to obtain the medical variance agreement, something that’s been in place since 2015.

That, alone, is a problem when there aren’t enough doctors to allow for four backup doctors.

“The hostile climate in Southwest Ohio makes it extremely difficult to find even one backup doctor to support a variance,” the lawsuit states. “There has been a national campaign to harass and shame the Dayton doctors who provide backup services to patients of WMD.”

If variances are lost, licenses to practice as an ambulatory surgical facility are lost. That would mean a lose of health care services in Southwest Ohio, meaning the patients would be the ones suffering.

“If plaintiffs’ ASF licenses are revoked, people needing procedural abortions would be forced to travel hundreds of miles round-trip to the next closest procedural abortion providers, and, due to a statutory waiting period, make that trip twice, or stay overnight, in order to access procedural abortion,” the clinics wrote in the lawsuit.

The fact that the lawsuit has been assigned to Judge Alison Hatheway could mean good things for abortion clinics. Hatheway has been the judge on two other lawsuits fighting against state abortion restrictions, and in both cases Hatheway has ruled in favor of temporary stops to state legislation clinics said hampered their right to provide care.

Most recently, Hatheway stopped a fetal tissue disposal law for a second time, saying clinics are “substantially likely to succeed” in their suit against an Ohio law that would require clinics to pay for burial or cremation of fetal tissue resulting from an abortion.

In April of last year, the judge blocked a law restricting telemedicine abortions in the state.