An abortion law dispute involving a statute that requires certain medical facilities to have a transfer agreement with a local hospital for emergencies or medical complications has been taken up for review by the Ohio Supreme Court. The appeal will be one of eight cases before the Supreme Court next week during oral arguments.

Restrictions Included in 2013 Budget Bill
The Ohio Department of Health licenses “ambulatory surgical facilities” (ASFs), which are free-standing facilities where outpatient surgeries are routinely performed. A 1996 department rule required ASFs to have a written transfer agreement with a hospital for transfer of patients in the event of medical complications, emergency situations, or other needs.

In 2013, as part of the state budget bill, the General Assembly changed the laws governing ASFs to incorporate the department’s 1996 rule into the Revised Code, to require each facility to have a transfer agreement with a “local hospital,” and to ban public hospitals from entering transfer agreements with facilities that perform abortions.

Capital Care Network of Toledo, which provides abortions, had a transfer agreement with the University of Toledo Hospital, a public entity, but lost the arrangement in 2013 because of the public hospital ban. In January 2014, Capital Care secured a transfer agreement with the University of Michigan Health System in Ann Arbor, Michigan, 52 miles from the clinic. However, the health department determined that the Ann Arbor hospital was too far away and revoked the clinic’s license.

Capital Care appealed, and the common pleas court overturned the department’s order, finding that the 2013 laws governing ASFs were unconstitutional. The department appealed, but the Sixth District Court of Appeals affirmed the ruling.

Health Department, Clinic Disagree About Emergency Care
In its appeal to the Supreme Court, the state focuses first on the 1996 rule, given that the common pleas and appellate courts found the 2013 ASF statutes unconstitutional. The state argues that the 1996 rule always implied that a facility’s transfer agreement had to be with a local hospital, even though the rule didn’t expressly include the word “local,” because the agreement had to accommodate emergency situations.

The clinic counters that the health department rejected the transfer agreement with the Ann Arbor hospital because it wasn’t local, which was a requirement that appeared only in statute, not in the department’s administrative rules. Capital Care believed its transfer agreement with the Ann Arbor hospital met the requirements of the 2013 law because of the clinic’s plan to transport patients who didn’t need immediate treatment to Ann Arbor by helicopter or, if the helicopter wasn’t available, by vehicle. For life-threatening emergencies, the staff calls 911. The clinic contends that for emergency treatment patients must be taken to the closest hospital and federal law requires all hospitals to accept these patients.

The state also challenges the common pleas and appellate court rulings that the laws are unconstitutional. The state argues that the courts improperly reviewed the constitutionality of the laws and, regardless, the courts’ analyses don’t support a holding that the laws violate due-process rights or impose an undue burden on women seeking abortions.

After 2013, the state legislature added new laws to define “local” for written transfer agreements to hospitals.

Oral Arguments Scheduled
The Supreme Court will consider Capital Care v. State and three other cases on Tuesday, Sept. 12. Four more cases will be heard on Wednesday, Sept. 13. The Court’s session begins at 9 a.m. each day at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live on The Ohio Channel.

Case Previews Available
Along with the brief descriptions below, the Office of Public Information today released previews of the central arguments in the cases.

Tuesday, Sept. 12
In 2014, a Montgomery County minor participated in a street crime known as “the knock-out game,” where he allegedly struck two homeless men and took their property. He was charged with crimes in juvenile court, but prosecutors requested his case be transferred to adult court. The minor attempted to appeal the juvenile court’s action, but was told he would have to wait until after he was convicted and sentenced in adult court before he could challenge the transfer. The Court will consider in In re D.H. if a juvenile court’s transfer of jurisdiction to common pleas court is a final order that can be appealed before proceedings in common pleas court begin.

A Franklin County commercial real estate company was sued in a disputed property deal and turned to its insurance company for coverage. The claim was denied, and the realtor learned its broker hadn’t selected the right policy. The realtor filed a lawsuit in 2015 against the broker for professional negligence, but the broker claimed the realtor missed the four-year statute of limitations for filing the suit. In Frank and London Insurance v. LGR Realty,the Court will determine if the statute of limitations for alleging insurance agent negligence starts when the coverage is purchased or when an insurance claim is denied and the policyholder discovers the error.

The Board of Professional Conduct in Disciplinary Counsel v. Maciak recommends that a former Ohio attorney now practicing in Florida be suspended from the practice of law in Ohio for two years, with the suspension fully stayed. The board found the attorney practiced law in Florida without obtaining the required certification to act as in-house counsel for a corporation and was under suspension in Ohio. The Office of the Disciplinary Counsel seeks a more severe sanction that would include actual suspension time.

Wednesday, Sept. 13
A Cuyahoga County man confessed to stealing 10 prescription patches each containing the strong painkiller fentanyl. He pleaded guilty to four crimes related to the theft. However, he disputed that he possessed between five and 50 times the bulk amount of fentanyl, a second-degree felony, but instead claimed he had an amount that could lead only to a lesser, fifth-degree drug possession charge. Ohio law doesn’t have a “usual dosage range” for fentanyl, so an expert witness converted the ranges for morphine to determine that having two fentanyl patches met the requirements for a second-degree felony. The Court in State v. Pountney will decide if prosecutors can use the morphine dosage range specified in a standard pharmaceutical reference manual to establish a bulk amount for fentanyl.

A Montgomery County court issued a domestic violence civil protection order against a man who was found to have pushed his ex-wife into shrubbery and threatened her. He appealed the protection order, but the appellate court decided his claims were moot because the order had expired earlier that year. In Cyran v. Cyran, he argues that he still can suffer harm even after the order expires, pointing to possible problems with employment, credit, and weapons. He contends that all domestic violence protection orders should be appealable even after their expiration.

The local children services agency took temporary custody of a Franklin County woman’s child when she tested positive for drugs and alcohol at the child’s birth. As the child approached 2 years old, the agency filed for permanent custody to allow adoption. After several postponements, the court held a hearing, but the mother didn’t attend, and the court granted her lawyer’s request to withdraw as counsel. In re R.K. centers on whether a parent has a right to counsel in a parental rights termination hearing that must knowingly be waived.

Disbarment is the recommended sanction from the professional conduct board in Cleveland Metro. Bar Assn. v. Hurley. The board determined that the Cleveland attorney listed himself, while suspended, as an attorney in letters he sent to employers in which he demanded money as a settlement for alleged employment discrimination. The attorney objects to the sanction, arguing that any individual can file a federal employment discrimination complaint and that the board should have considered several mitigating circumstances.