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An ACLU suit contends Ohio is violating due process rights for abortion clinics

By: Jo Ingles | Statehouse News Bureau
Posted on: Sunday, July 31, 2022

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COLUMBUS, Ohio (Statehouse News Bureau) — The American Civil Liberties Union of Ohio, the ACLU Reproductive Freedom Project and Planned Parenthood Federation of America is asking a court to rule for them in a seven-year-old lawsuit over a state law that requires abortion clinics to have a written transfer agreement with local hospitals.

Abortion Rights protestors outside of the statehouse — [Daniel Konik | Statehouse News Bureau]

Under this law, the state requires health clinics that provide abortion to either have a contract with a local hospital, or obtain a variance from that requirement. But the lawsuit, first filed seven years ago, says the Ohio Department of Health interprets this requirement in an arbitrary, unpredictable, and constantly changing way.

The original lawsuit was filed on September 1, 2015 on behalf of clinics in southwest Ohio. It contends the state has been placing medically unnecessary, burdensome requirements on abortion clinics.

ACLU attorney Jessie Hill said the state health department interprets those requirements in an arbitrary way that violates the constitutional right of due process.

“We don’t have sufficient notice or opportunity to be heard when the state is ruling on clinic licensing decisions,” Hill said.

But Aaron Baer with the Citizens for Christian Virtue said the ACLU is trying to invent laws.

“Their arguments lose at the ballot box, and now they’re hoping for a judicial bail out,” Baer responded on Twitter.

In 2013, as a part of the biennial budget bill, House Bill 59 was put in place with three new provisions that made it difficult for clinics already struggling to comply with the transfer agreement rules to maintain their licenses.

Then, in 2015, as part of the biennial omnibus budget measure, the Ohio Legislature enacted House Bill 64, which immediately and automatically suspends an abortion facility’s license if ODH fails to act on a transfer agreement variance application within 60 days or if it denies the request for a variance.

The ACLU said the clinics’ claims do not rest on the rights that disappeared when Roe v. Wade was reversed. Instead, the clinics’ lawsuit is based on other rights under the United States constitution. The ACLU said provisions of HB 59 and HB 64 violate the right to due process under the United States constitution because they endow private parties with standardless, unreviewable authority.