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Judge: Local abortion clinics can stay open

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Posted at 5:21 PM, Oct 13, 2015
and last updated 2015-10-13 17:21:09-04

CINCINNATI -- A federal judge banned Ohio health officials from enforcing a strict new abortion law on Tuesday, until a lawsuit challenging it goes to trial next year.

U.S. District Judge Michael Barrett issued a preliminary injunction against Ohio's abortion law, and allowed a clinic in Cincinnati and one in Dayton to stay open.

The clinics sued the state in September, after they feared closure by new abortion laws. If that happened, Cincinnati would have been the largest metropolitan area in the nation without a surgical abortion provider.

In his ruling, Barrett wrote the abortion clinics had “likelihood of success” moving forward with the case.

“An emergency is now stopped and now we can take a deep breath,” said Jennifer Branch, a civil rights lawyer for Planned Parenthood of Southwest Ohio’s Mount Auburn clinic and Women’s Med Group’s Kettering clinic.

“Today, the court ruled in favor of Ohio women, ensuring access to safe and legal abortion,” said Jerry Lawson, CEO of Planned Parenthood Southwest Ohio. “This sends an important message to Ohio politicians that their unconstitutional attempts to restrict access to abortion will not stand. Patient safety is our top priority.”

This is the latest twist in a battle between lawmakers in Ohio, who have tightened abortion regulations in recent years, and clinics that are fighting to stay open.

At issue is an Ohio law that 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.

It 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.

Branch agreed.

“The state set up a system that makes it impossible for an abortion clinic to get a license,” Branch said. “I think legislators already knew it was unconstitutional and they went ahead and passed it anyhow,”

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

“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,” assistant Ohio Attorney General Nicole M. Koppitch wrote.

But the judge saw things differently.

“At this time, the connection between the denial of the variance and the health and safety concerns is tenuous,” Barrett wrote.

As the case moves toward trial, Branch plans to attack all state laws about written transfer agreements.

“The whole written transfer agreement process in Ohio is unconstitutional,” she said. “That’s what we’re going after.”

Barrett issued a temporary restraining order in the case on Sept. 30, which allowed the clinics to stay open while he weighed whether the case met the high burden for a preliminary injunction. On Tuesday he ruled that it did. 

“Given the temporary nature of the relief, the court finds that the harm to women seeking abortion services outweighs the more theoretical harm to the patients’ health and safety at this time,” Barrett wrote.