The Ohio Department of Health has revoked the operating license of the Dayton area’s only remaining abortion clinic on the grounds that it failed to obtain a required transfer agreement with a nearby hospital for emergencies.
The Women’s Med Center of Dayton has 15 days to appeal the order issued Wednesday. An attorney for the clinic said an appeal and a request for a stay to remain open will be filed within a day or two.
Attorney Jennifer Branch said she’s confident the clinic will remain open during the appeal because judges have granted stays of closure in past cases of this type.
Ohio requires ambulatory surgical facilities, including all abortion clinics, to have emergency backup agreements with nearby hospitals or to obtain a variance from that requirement. Women’s Med Center has applied for numerous variances naming local doctors that have agreed to serve as emergency backups.
But Ohio Director of Health Richard Hodges said the license is being revoked because the facility failed to name an adequate number of physicians to provide the backup care necessary. His order fell in line with the recommendations of an independent hearing officer.
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Women’s Med Center has been unable to obtain a transfer agreement since 2002. Public hospitals may not participate in such agreements under Ohio law and private hospitals have seen their facilities targeted by anti-abortion protesters if they enter such agreements, said Kellie Copeland, executive director of NARAL Pro-Choice Ohio.
The anti-abortion group Created Equal had launched a campaign aimed at calling out doctors involved in abortions, which included posters, mailers and vehicles circulating through the doctors’ neighborhoods publicizing their names.
“They’ve been harassing the doctors and the patients of those facilities. So hospitals know if they sign this paperwork, they’re likely to be next,” Copeland said. “I don’t think that we should be surprised that some hospitals are reluctant to sign these transfer agreements.”
Women’s Med Center has submitted variance applications in recent years showing it contracts with two physicians as backups. For years, those variances were neither denied nor granted, Branch said, and the facility was allowed to continue to operate.
“Given the Ohio Department of Health’s arbitrary rules about how many backup doctors are necessary, I wasn’t surprised by the decision,” Branch said about Wednesday’s order. “They said two doctors aren’t enough. You need three. And the facility got a third doctor, turned in the information and ODH said, ‘Oh, well, now you need four.’”
Ohio Right to Life spokeswoman Katherine Franklin said her group is excited by this action.
“We’re grateful to the Department of Health for holding this abortion clinic responsible to health and safety standards,” Franklin said. “We’re hopeful that it will spare thousands of lives in Dayton in the long run.”
The group filed a complaint with the State Medical Board in August over an abortion performed at the Women’s Med Center of Dayton in June 2015 on a 31-year-old woman who was reportedly too high to fully consent to the procedure.
“This is the same facility that, according to the Ohio Department of Health, violated a woman’s right to refuse an abortion last June,” said Devin Scribner, executive director of Ohio Right to Life in a statement released Thursday.
The department did cite the clinic following the self-reported incident for failure, “to ensure a patient was allowed to refuse or withdraw consent for treatment when her physical and cognitive condition precluded her from participating in her treatment.” The citation resulted in the clinic rewriting its policy, according to Copeland.
The medical board closed the case without taking any action.
The state’s order this week did not mention that incident in its decision to order the clinic closure. It said the transfer agreement requirement is intended to provide for “the safe and immediate transfer of patients when medical care is needed beyond that which can be provided in the facility.”
The state’s abortion clinic restrictions have resulted in numerous court challenges. In a case brought by the only remaining abortion clinic in Toledo, the Ohio Sixth District Court of Appeals in July found that the state law requiring transfer agreements created an undue burden on a woman’s right to an abortion and was therefore unconstitutional. Ohio Attorney General Mike DeWine is appealing that decision.
State Rep. Greta Johnson, D-Akron, released a statement Thursday saying the revocation of Women’s Med Center’s license stands on shaky legal ground because of that Toledo decision and the U.S. Supreme Court decision in Whole Women’s Health v. Hellerstedt that struck down similar laws in Texas.
“It’s less than six months after the U.S. Supreme Court ruled that regulatory schemes like this against abortion providers are unconstitutional, and here we have the Ohio Department of Health pushing to close Dayton’s only abortion clinic over those sorts of schemes,” Copeland with NARAL Pro-Choice Ohio said.
A spokesman for DeWine last month said Ohio’s law is still enforceable because “the fact pattern and the laws in question in the Texas case were different than those in Ohio.”
The state had 14 abortion clinics at the beginning of 2013 when the transfer agreement law was passed. There are now nine operating clinics, including the Women’s Med Center. A number of them are involved in legal battles to stay open.
The Associated Press contributed to this report.