The Legal Fight to Save Cincinnati’s Last Clinic

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Analysis Law and Policy

The Legal Fight to Save Cincinnati’s Last Clinic

Jessica Mason Pieklo

Cincinnati is a metropolitan area of more than two million residents, and if state Republicans get their way, it will become the nation’s largest urban area without a single abortion clinic.

Cincinnati is a metropolitan area of more than two million residents, and if state Republicans get their way, it will become the nation’s largest urban area without a single abortion clinic.

That’s what is at stake in a federal civil rights lawsuit filed on Monday by attorneys on behalf of Cincinnati’s only surgical abortion facility, Elizabeth Campbell Medical Center, operated by Planned Parenthood of Southwest Ohio (PPSWO).

The lawsuit alleges that a series of state regulations that apply only to abortion providers amounts to an “unconstitutional scheme” to cut off abortion access in Ohio, especially for the poorest and most vulnerable in the state.

Ohio lawmakers have created a maze of regulations that unconstitutionally singles out abortion providers and is constructed in such a way as to make compliance impossible, according to the complaint. Here is how the plaintiffs allege that regulatory scheme works: First, state law mandates that all Ohio abortion clinics must meet the requirements of and be licensed as an ambulatory surgical facility (ASF). The State of Ohio also requires all ASFs, including those ASFs that are abortion clinics, to have a written transfer agreement with a hospital in the event that one of its patients has an emergency or complication from surgery that requires treatment in the hospital.

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But the state prohibits those ASFs that provide abortions—and only ASFs that provide abortions—from entering into those mandated transfer agreements with a public hospital. Every other ASF in the state can secure a transfer agreement from a public hospital, no matter what types of services they offer.

It’s that public hospital transfer ban that challengers claim is the critical regulatory weapon anti-choice lawmakers are now wielding to systematically target, and close, the last remaining abortion clinics in the state.

Until the public hospital ban was enacted, PPSWO had a longstanding transfer agreement renewed annually with the University of Cincinnati Medical Center (UCMC). UCMC is the only Level 1 trauma center in the Cincinnati area with physicians who have expertise in wide a range of specialties and in-house faculty and residents for obstetrics and gynecology.

That relationship ended once Ohio lawmakers enacted the public hospital transfer ban. Despite the fact that UCMC is a privately-operated nonprofit institution, it sits on city-and-state owned land and therefore is considered to be a “public hospital” under the transfer ban.

Ohio lawmakers intentionally drafted the definition of “public hospital” in the ban broadly with the intent to include UCMC and force it to terminate its relationship with Planned Parenthood, according to the plaintiffs.

Once UCMC terminated its transfer agreement with PPSWO, the clinic approached all the remaining area hospitals, but according to the complaint, those hospitals either rejected or ignored its requests. Many hospitals in Cincinnati and the surrounding area are Catholic institutions with a stated opposition to cooperating in the delivery of abortion services.

PPSWO requested a variance of the transfer agreement rule, but despite meeting all the stated qualifications for the variance, has not received a response from the Ohio Board of Health, the agency in charge of implementing the regulations and a defendant in the lawsuit.

PPSWO first made their request for a variance 13 months ago.

If the clinic closes, which PPSWO states it will should the transfer ban be enforced against it, that will leave Cincinnati as the largest metropolitan area in the United States without a surgical abortion provider.

Which is exactly the goal of Ohio’s most virulently anti-choice legislators.

At the beginning of 2013, there were 14 abortion providers in Ohio. There are now eight.

“The clinics that the Ohio Department of Health is currently trying to close are Toledo and Cincinnati,” Kellie Copeland, executive director of NARAL Pro-Choice Ohio, said in an interview with Rewire. “In both those cases they have already played some role in closing the other abortion provider that had been in those communities. They both had two [providers] and now they both have one.”

Copeland said Ohio’s public hospital transfer ban is the latest weapon in anti-choice lawmakers’ incremental war on abortion access. “Straight up I-75, north of Cincinnati, on the other end of that border, is Toledo, which could also lose its only abortion provider,” Copeland said. “In between is the clinic we think will be targeted next, and that is the only abortion clinic in Dayton. If those three clinics were to fall, we would have no abortion provider west of Columbus for the state of Ohio. And we already have a situation where 91 percent of our counties have no abortion providers.”

Copeland continued: “So what we would be left with is two clinics in Cleveland, and a year ago we had four. One abortion clinic in the Akron area and two abortion clinics in Columbus, and a few months ago we had three. And those three cities that are left rely on transfer agreements from three different hospital groups. That means, if the worst happens, if those clinics fall, you’re talking about three hospitals, three CEOs who decide whether or not abortion remains legally available in the State of Ohio.”

States like Texas and Mississippi may be among the first to come to mind when discussing targeted regulation of abortion provider laws (TRAP) laws, but in many ways Ohio has served as the testing ground for the some of the nation’s most deceptive and punitive anti-abortion restrictions beginning in 1999 when the Ohio Department of Health first determined abortion clinics must meet ASF requirements.

Ohio also has in place a mandatory 24-hour waiting period and was among the first states to enact strict restrictions on medication abortion, mandating doctors follow FDA protocol despite advances in practice. The totality of these restrictions add expense and delay to the procedure, which has pushed more Ohio patients into surgical abortions.

Ohio has a whole other set of restrictions that apply to those patients needing an abortion later in their pregnancy. For example, under Gov. John Kasich’s (R) leadership, Ohio lawmakers have enacted various “viability” tests that must be performed on any patient who wants to terminate a pregnancy between 20 and 24 weeks to determine if that pregnancy is viable, while the law presumes any pregnancy after 24 weeks is automatically viable, Copeland said.

Any pregnancy deemed by a physician to be viable cannot be legally terminated in Ohio.

These layers of restrictions have led many patients in Ohio to travel long distances to neighboring cities or to leave the state looking for abortion services.

Should the Ohio Department of Health successfully close the Cincinnati clinic, the impact will reach across the state and into neighboring states as well, said Copeland, who explained that those clinics also see patients from Indiana and Kentucky. “If the Cincinnati clinic closes, the nearest abortion provider would probably be the clinic in Dayton, and the frightening thing about that is that we know they are the next target for the Ohio Department of Health.”

Services at the Dayton clinic are already at capacity due to the wave of clinic closures in the state. The clinic will not be able to meet the additional demand that would come from closing the Cincinnati clinic, according to lawyers for PPSWO.

But if one effect of TRAP regulations in Ohio is to push many patients to travel for care, what about those patients who do not have the means or ability to travel for care? Around 70 percent of PPSWO’s patients are at or below the federal poverty level, with the vast majority of its patients below 200 percent of the poverty level, according to declarations filed with the plaintiffs complaint.

Many do not own a car and reach PPSWO using borrowed cars or public transportation. These patients often have to turn to abortion funds to pay for the procedure. For a significant number of PPSWO’s low-income patients, the burdens imposed by the closure of the Cincinnati clinic would be insurmountable and would prevent them from obtaining abortions they otherwise would have obtained, according to papers filed with the complaint.

That means that as lawmakers threaten access in states like Ohio, they also threaten access in neighboring states.

“This new law was intended to close clinics. That’s the road map they’re following and it’s what they intend to do,” said Copeland.