Top court hears Texas abortion case
March 7, 2016
COLUMBUS, Ohio (AP) — Ohioans on both sides of the abortion issue were focused Wednesday on the U.S. Supreme Court as it weighed Texas’ restrictions on clinics that are similar to some laws in this state.
Laws enacted over the last few years requiring clinics in this state to have emergency transfer agreements in place with local hospitals and prohibiting publicly funded hospitals from entering into such agreements are under challenge in Ohio courts, including in Toledo.
“What this boils down to is a states-rights issue,” said Mike Gonidakis, president of Ohio Right to Life. “We can talk about Roe vs. Wade another day. Is the Supreme Court going to allow Ohio and Texas to set their own health standards, and the answer to that has to be yes.”
But Jennifer Branch, an attorney involved in abortion-related cases pending in federal court in Cincinnati and in Ohio’s 6th District Court of Appeals in Toledo, fears a decision upholding the Texas laws will lead Ohio to change its own laws on ambulatory surgical facilities to make them more severe.
The recent death of conservative Justice Antonin Scalia added a new wrinkle to Wednesday’s arguments.
Should the court deadlock at 4-4, it would have the effect of upholding the lower court ruling in Texas that had upheld the restrictions.
A 4-4 decision, however, would not be binding outside the Texas circuit, which also includes neighboring Louisiana. It would not serve as precedent for the cases pending in Ohio, potentially preserving that fight for a future, full nine-member bench.
The Texas case, Whole Woman’s Health vs. Hellerstedt, involves laws ordering abortion clinics to upgrade their facilities to hospital-like standards and requiring clinic doctors to have admitting privileges with local hospitals.
Critics argue it could lead to the closing of more clinics in Texas and in other states that might follow their lead.
The three female justices, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg, and Justice Stephen Breyer repeatedly questioned why Texas needed to enact the 2013 law, which was House Bill 2. “But what is the legitimate interest in protecting their health? What evidence is there that under the prior law, the prior law was not sufficiently protective of the women’s health?” Justice Ginsburg asked Texas Solicitor General Scott Keller.
Solicitor General Donald Verrilli, Jr., representing the Obama Administration in support of Whole Woman’s Health, reported that 65,000 to 75,000 abortions per year were provided in Texas before House Bill 2 passed.
The clinics remaining open under the law can provide about 14,000 abortions a year.
In recent years, Ohio lawmakers have added more conditions to the operating licenses of abortion clinics.
Last year, the state tightened the language of what it considers to be a “local” hospital capable of entering into an emergency transfer agreement with a clinic. The state specifically defined “local” to be one located within 30 miles of the clinic.
If the Texas laws are upheld, “my concern is Ohio will change the ‘ambulatory surgical facility’ laws to “make them more severe and target just abortion clinics,” Ms. Branch said.
She does not think the Toledo case involving Capital Care Network and pending in the 6th District would be directly affected by this case before the high court.
“That case has the narrow issue of whether the [hospital agreement law] is constitutional under the Ohio Constitution, which is not at play before the U.S. Supreme Court,” Ms. Branch said.
Capital Care is fighting the Ohio Department of Health’s refusal to renew its license because it does not have an emergency care agreement in place with a “local” hospital.
The department determined the University of Michigan Medical Center in Ann Arbor, some 50 miles from Toledo, with which the clinic reached an agreement, didn’t meet its idea of a “local” hospital. That was before the state etched the 30-mile radius into the law.
Mr. Gonidakis said Ohio Right to Life is not interested in pursuing something similar to the requirement in Texas that doctors in abortion clinics have admitting privileges with a local hospital.
“That’s not something we should pursue in Ohio…,” he said. “In Ohio, our abortion clinics tend to be in or around big cities. The issue in Texas is geography.”