Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, February 18, 2006

Case Law Development: Sixth Circuit Court of Appeals Orders New Hearing on Abortion License

In Women’s Medical Professional Corporation; Martin Haskell, M.D., v. J. Nick Baird, M.D., Director of Ohio Department of Health, a three-judge panel  of the Sixth Circuit Court of Appeals on Friday gave the state of Ohio another opportunity to show why a doctor should not be allowed to perform abortions at a clinic in Dayton. The dispute involved the Women’s Medical Professional Corporation that operates an abortion clinic in Dayton, Ohio. Under Ohio law, the Dayton clinic is required to be licensed. The clinic attempted to enter into a written transfer agreement with a Dayton-area hospital in order to meet the requirements necessary to obtain a license. No hospital would enter into a transfer agreement with the clinic. The clinic then sought a waiver of the transfer agreement requirement. In its application, it stated that it had a back-up group of physicians that would provide care in the event of an emergency, and it also provided a letter from a Miami Valley, Ohio Hospital, stating that the hospital would accept patients in the event of an emergency.  The director of the Ohio Department of Health refused to grant a waiver and in January 2003 ordered the clinic closed. The clinic sued and two U.S. District Court judges issued a temporary and then permanent order that would allow the clinic to remain open.

The Director appealed the district court’s grant of a permanent injunction and award of attorneys’ fees and expenses. The Sixth Circuit affirmed the district court with respect to its conclusion that the clinic’s procedural due process rights were violated, but vacated the grant of a permanent injunction and remanded the case for a hearing on the proposed denial of the license application.

The Court concluded that closing the Dayton clinic may be burdensome for some of its potential patients, however, the fact that the women may have to travel farther to obtain an abortion does not constitute a substantial obstacle. It stated that evidence in the record established that there are abortion clinics in Cincinnati, Columbus, Cleveland, and Akron and the clinic itself operates an abortion clinic in Cincinnati, which is approximately forty-five to fifty-five miles from the Daytonclinic.

The panel held that the application of the written transfer agreement requirement to the Dayton clinic is not an undue burden under Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). It said that while the Director may have been affected by political pressures to deny the waiver application, the district court made no factual finding that the Director acted with an unconstitutional purpose to burden the right of women to choose an abortion. The panel also ruled that while the application of the written transfer agreement requirement may serve to close the Dayton clinic, the clinic presented no evidence that a majority of the Dayton clinic’s prospective patients would not be able to receive an abortion at another clinic. Download here the slip opinion, Womens_Medical_Professional_Corp. , et. al. v. Baird.pdf (reo)

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