[Cite as Capital Care Network of Toledo v. State of Ohio Dept. of Health, 2016-Ohio-5168.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Capital Care Network of Toledo Court of Appeals No. L-15-1186
Appellee Trial Court No. CI0201403405
v.
State of Ohio Department of Health DECISION AND JUDGMENT
Appellant Decided: July 29, 2016
*****
Terry J. Lodge, Jennifer L. Branch and Alphonse A. Gerhardstein, for appellee.
Mike DeWine, Ohio Attorney General, Eric E. Murphy, State Solicitor, Stephen P. Carney and Peter T. Reed, Deputy Solicitors, for appellant.
SINGER, J.
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common
Pleas which reversed the decision of appellant, Ohio Department of Health (“ODH”).
For the reasons that follow, we affirm the trial court’s judgment. Background
{¶ 2} Appellee, Capital Care Network of Toledo (“Capital Care”), is a medical
facility located in Toledo, Ohio, which offers abortion services. Capital Care has been
licensed by the ODH to operate an ambulatory surgical facility (“ASF”) since at least
2010. An ASF is a health care facility where outpatient surgery is performed. Ohio
Adm.Code 3701-83-15(A)(1); R.C. 3702.30(A). All ASFs in Ohio are required to have a
health care facility license, issued by the director of the ODH. Ohio Adm.Code 3701-83-
03(A); R.C. 3702.30(D), (E)(1).
{¶ 3} In 2010, Terry Hubbard became the owner of Capital Care. Before Ms.
Hubbard purchased Capital Care, she worked for Capital Care for eight years as a
registered nurse. In August 2012, Capital Care and the University of Toledo Medical
Center entered into a written transfer agreement (“WTA”). A WTA specifies a procedure
for the transfer of a patient from an ASF to a hospital in the event of a medical
complication or emergency, and was required by Ohio Adm.Code 3701-83-19(E).
{¶ 4} In April 2013, Capital Care was notified by the University of Toledo
Medical Center that the hospital did not intend to renew the WTA when it expired on
July 31, 2013. Capital Care sought another hospital which would agree to a WTA, but
was unsuccessful at that time.
{¶ 5} In August 2013, Capital Care was notified that ODH’s director was
proposing to issue an order refusing to renew and revoking Capital Care’s health care
2. facility license due to a violation of Ohio Adm.Code 3701-83-19, which required an ASF
to have a WTA with a hospital.
{¶ 6} On September 29, 2013, Am.Sub.H.B. 59 (“H.B. 59”) went into effect. The
key provisions of the bill relating to the licensing of ASFs are codified in R.C. 3702.30
through 3702.33 and 3727.60. Pursuant to R.C. 3702.30(D) and (E)(1), all health care
facilities, which includes ASFs, must have a license issued by the director of the ODH to
operate. In order to obtain a license, an ASF must have a WTA with a local hospital, or
be granted a variance from that requirement. R.C. 3702.303 and 3702.304. However,
R.C. 3727.60 forbids any public hospital from entering into a WTA with an ASF which
performs abortions. R.C. 3727.60 also forbids any public hospital from authorizing a
physician who has staff privileges at the public hospital to use those privileges for an
ASF, which performs abortions, to obtain a variance as a substitute for a WTA.
{¶ 7} Capital Care attempted to secure a WTA with a hospital in the Toledo area,
but was unsuccessful. Therefore, in January 2014, Capital Care submitted to the ODH a
WTA with the University of Michigan Health System of Ann Arbor, Michigan.
However, in February 2014, Capital Care was notified that ODH’s director was
proposing to issue an order refusing to renew and revoking Capital Care’s health care
facility license for not having a WTA with a local hospital, in violation of Ohio
Adm.Code 3701-83-19(E) and R.C. 3702.303. Capital Care requested a hearing on the
proposed order. A hearing was held on March 26, 2014, before a hearing examiner.
3. {¶ 8} On June 10, 2014, the hearing examiner issued a report and recommendation
finding the WTA submitted by Capital Care in January 2014 did not comply with the
requirements of R.C. 3702.303. The hearing examiner concluded since Capital Care did
not have an acceptable WTA with a local hospital or a variance, Capital Care did not
meet the licensing requirements of R.C. 3702.30. Accordingly, the hearing examiner
opined the ODH director’s decision not to renew and to revoke Capital Care’s license
was valid. Capital Care submitted objections to the report and recommendation.
{¶ 9} On July 29, 2014, ODH’s interim director issued an adjudication order
refusing to renew and revoking Capital Care’s health care facility license based on the
hearing examiner’s findings, and in accordance with R.C. 3702.32, 3702.303(A), R.C.
Chapter 119 and Ohio Adm.Code 3701-83-19(E). Capital Care appealed to the trial
court.
{¶ 10} On June 19, 2015, the trial court rendered its decision reversing the interim
director’s order. The court found R.C. 3702.303, 3702.304 and 3727.60 (hereinafter “the
licensing provisions”) unconstitutional as applied to Capital Care because the WTA
requirement and variance provisions contain unconstitutional delegations of licensing
authority. ODH appealed.
{¶ 11} ODH sets forth one assignment of error:
On July 29, 2014, the Ohio Department of Health’s Director issued
an Order revoking the license of Capital Care Network for failure to have a
4. written transfer agreement with a local hospital. The trial court erred when
it found that this Order was not in accordance with law.
{¶ 12} ODH also sets forth two issues for review:
1. Does the U.S. Constitution allow Ohio to require ambulatory
surgical facilities, as a licensing condition, to have a written transfer
agreement with a local hospital or to obtain a variance from that
requirement, and may it apply that requirement to abortion clinics on the
same terms as other surgical facilities without violating the abortion-
specific “undue burden” test or violating any purported rule against
“delegating” state power to private parties?
2. Did the Director of Health properly conclude that a transfer
agreement between a Toledo clinic and an Ann Arbor hospital 52 miles
away either (1) does not qualify as a “written transfer agreement” with a
“local hospital” under R.C. 3702.303(A), or (2) does not qualify as an
agreement that adequately provides for safe “transfer of patients in the
event of medical complications [or] emergency situations” under O.A.C.
3701-83-19(E)?
Analysis
{¶ 13} Preliminarily, let us put this case in the proper perspective. ODH
complains that this is just another administrative appeal involving an ASF, and that it is
not an abortion case. It is an abortion case. The regulations and statutes involved are
5. directed towards abortion providers. See, e.g., R.C. 3727.60 (prohibits all public
hospitals from entering into a WTA with an ASF which performs nontherapeutic
abortions and prohibits all public hospitals from authorizing a physician with staff
privileges to use those privileges for an ASF which performs nontherapeutic abortions to
obtain a variance as a substitute for a WTA). While the law does not forbid private
hospitals from entering into a WTA with an ASF, private hospitals and physicians with
privileges at private hospitals decline to enter into such agreements. Why? Such
agreements with abortion-providing ASFs are controversial and fraught with
consequences and issues undoubtedly not faced by ASFs which perform other types of
services and procedures. See Whole Woman’s Health v. Hellerstedt, 579 U. S. __, 195
L.Ed.2d 665, 688 (2016):
Brief for Planned Parenthood Federation of America et al. as Amici Curiae
14 (noting that abortion facilities in Waco, San Angelo, and Midland no
longer operate because Planned Parenthood is “unable to find local
physicians in those communities with privileges who are willing to provide
abortions due to the size of those communities and the hostility that
abortion providers face”).
{¶ 14} Therefore, since this is an abortion case, the trial court properly addressed
the constitutional ramifications of the ODH interim director’s adjudication order. We
will do the same in addressing ODH’s assignment of error that the trial court erred in
finding the order issued by ODH’s interim director was not in accordance with law.
6. Standard of Review
{¶ 15} The determination as to whether or not a statute is constitutional presents a
question of law, which we review de novo. Andreyko v. City of Cincinnati, 153 Ohio
App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 11 (1st Dist.). See also David P. v.
Kim D., 6th Dist. Lucas No. L-06-1164, 2007-Ohio-1865, ¶ 15.
The Licensing Provisions
R.C. 3702.303—Transfer Agreements Between Surgical Facilities and Hospitals
(A) Except as provided in division (C) of this section, an ambulatory
surgical facility shall have a written transfer agreement with a local hospital
that specifies an effective procedure for the safe and immediate transfer of
patients from the facility to the hospital when medical care beyond the care
that can be provided at the ambulatory surgical facility is necessary,
including when emergency situations occur or medical complications arise.
A copy of the agreement shall be filed with the director of health.
(B) An ambulatory surgical facility shall update a written transfer
agreement every two years and file a copy of the updated agreement with
the director.
(C) The requirement for a written transfer agreement between an
ambulatory surgical facility and a hospital does not apply if either of the
following is the case:
7. (1) The facility is a provider-based entity, as defined in 42 C.F.R.
413.65(a)(2), of a hospital and the facility’s policies and procedures to
address situations when care beyond the care that can be provided at the
ambulatory surgical facility are approved by the governing body of the
facility’s parent hospital and implemented;
(2) The director of health has, pursuant to the procedure specified in
section 3702.304 of the Revised Code, granted the facility a variance from
the requirement.
R.C. 3702.304—Variance from Written Transfer Agreement
(A)(1) The director of health may grant a variance from the written
transfer agreement requirement of section 3702.303 of the Revised Code if
the ambulatory surgical facility submits to the director a complete variance
application, prescribed by the director, and the director determines after
reviewing the application that the facility is capable of achieving the
purpose of a written transfer agreement in the absence of one. The
director’s determination is final.
(2) Not later than sixty days after receiving a variance application
from an ambulatory surgical facility, the director shall grant or deny the
variance. A variance application that has not been approved within sixty
days is considered denied.
8. (B) A variance application is complete for purposes of division
(A)(1) of this section if it contains or includes as attachments all of the
following:
(1) A statement explaining why application of the requirement
would cause the facility undue hardship and why the variance will not
jeopardize the health and safety of any patient;
(2) A letter, contract, or memorandum of understanding signed by
the facility and one or more consulting physicians who have admitting
privileges at a minimum of one local hospital, memorializing the physician
or physicians’ agreement to provide back-up coverage when medical care
beyond the level the facility can provide is necessary;
(3) For each consulting physician described in division (B)(2) of this
section:
(a) A signed statement in which the physician attests that the
physician is familiar with the facility and its operations, and agrees to
provide notice to the facility of any changes in the physician’s ability to
provide back-up coverage;
(b) The estimated travel time from the physician’s main residence or
office to each local hospital where the physician has admitting privileges;
(c) Written verification that the facility has a record of the name,
telephone numbers, and practice specialties of the physician;
9. (d) Written verification from the state medical board that the
physician possesses a valid certificate to practice medicine and surgery or
osteopathic medicine and surgery issued under Chapter 4731. of the
Revised Code;
(e) Documented verification that each hospital at which the
physician has admitting privileges has been informed in writing by the
physician that the physician is a consulting physician for the ambulatory
surgical facility and has agreed to provide back-up coverage for the facility
when medical care beyond the care the facility can provide is necessary.
(4) A copy of the facility’s operating procedures or protocols that, at
a minimum, do all of the following:
(a) Address how back-up coverage by consulting physicians is to
occur, including how back-up coverage is to occur when consulting
physicians are temporarily unavailable;
(b) Specify that each consulting physician is required to notify the
facility, without delay, when the physician is unable to expeditiously admit
patients to a local hospital and provide for continuity of patient care;
(c) Specify that a patient’s medical record maintained by the facility
must be transferred contemporaneously with the patient when the patient is
transferred from the facility to a hospital.
(5) Any other information the director considers necessary.
10. (C) The director’s decision to grant, refuse, or rescind a variance is
final.
(D) The director shall consider each application for a variance
independently without regard to any decision the director may have made
on a prior occasion to grant or deny a variance to that ambulatory surgical
facility or any other facility.
R.C. 3727.60—Limitations on Public Hospital Transfer Agreements
(A) As used in this section:
(1) “Ambulatory surgical facility” has the same meaning as in
section 3702.30 of the Revised Code.
(2) “Nontherapeutic abortion” has the same meaning as in section
9.04 of the Revised Code.
(3) “Political subdivision” means any body corporate and politic that
is responsible for governmental activities in a geographic area smaller than
the state.
(4) “Public hospital” means a hospital registered with the department
of health under section 3701.07 of the Revised Code that is owned, leased,
or controlled by this state or any agency, institution, instrumentality, or
political subdivision of this state. ‘Public hospital’ includes any state
university hospital, state medical college hospital, joint hospital, or public
hospital agency.
11. (5) “Written transfer agreement” means an agreement described in
section 3702.303 of the Revised Code.
(B) No public hospital shall do either of the following:
(1) Enter into a written transfer agreement with an ambulatory
surgical facility in which nontherapeutic abortions are performed or
induced;
(2) Authorize a physician who has been granted staff membership or
professional privileges at the public hospital to use that membership or
those privileges as a substitution for, or alternative to, a written transfer
agreement for purposes of a variance application described in section
3702.304 of the Revised Code that is submitted to the director of health by
an ambulatory surgical facility in which nontherapeutic abortions are
performed or induced.
Undue Burden
{¶ 16} It has long been held the “State has a legitimate interest in seeing to it that
abortion, like any other medical procedure, is performed under circumstances that insure
maximum safety for the patient.” Roe v. Wade, 410 U.S. 113, 150, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973).
{¶ 17} In Planned Parenthood v. Casey, 505 U.S. 833, 843, 112 S.Ct. 2791, 120
L.Ed.2d 674 (1992), the United States Supreme Court adopted the undue burden test to
determine whether state regulations had the purpose or effect of placing substantial
12. obstacles in the path of a woman seeking an abortion. The undue burden standard has
been recognized as the “appropriate means of reconciling the State’s interest with the
woman’s constitutionally protected liberty.” Id. at 876. A state regulation which has the
purpose or effect of placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus creates an undue burden and is invalid. Id. at 877.
However, a law which has a valid purpose and “the incidental effect of making it more
difficult or more expensive to procure an abortion,” does not impose an undue burden.
Id. at 874. “Only where state regulation imposes an undue burden on a woman’s ability
to make this decision does the power of the State reach into the heart of the liberty
protected by the Due Process Clause.” Id.
{¶ 18} While the undue burden test set forth in Casey has traditionally been
applied to abortion-specific regulations, courts have found the undue burden test also
applies to neutral regulations which effect abortion facilities. See Women’s Medical
Professional Corp. v. Baird, 438 F.3d 595, 603 (6th Cir.2006); Planned Parenthood of
Greater Iowa, Inc. v. Atchison, 126 F.3d 1042, 1049 (8th Cir.1997). It has been held that
“‘the constitutional inquiry in an as-applied challenge is limited to the plaintiff’s
particular situation,’ * * * and therefore, we must consider the context in which the
challenge to the regulation arises.” Baird at 603, citing Women’s Medical Professional
Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir.1997).
{¶ 19} Additionally, it has been held that a state is not permitted to “lean on its
sovereign neighbors to provide protection of its citizens’ federal constitutional rights.”
13. Jackson Women’s Health Organization v. Currier, 760 F.3d 448, 457 (5th Cir.2014). In
Currier, the circuit court ruled that a Mississippi state law requiring physicians to obtain
admitting privileges at local hospitals constituted an undue burden on a woman’s right to
procure an abortion in Mississippi. Id. at 459. The state had argued that although the law
would close the remaining abortion clinic in Mississippi, an undue burden under Casey
would not be created due to abortion clinics to which patients could travel in the
neighboring states of Louisiana and Tennessee. Id. at 455. The court considered whether
the availability of abortion clinics in neighboring states should be taken into account in
the undue burden analysis. Id. In rejecting the state’s argument, the court relied on State
of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350, 59 S.Ct. 232, 83 L.Ed.208
(1938), which set forth:
the obligation of the State to give the protection of equal laws can be
performed only where its laws operate, that is, within its own jurisdiction.
* * * That obligation is imposed by the Constitution upon the States
severally as governmental entities -- each responsible for its own laws
establishing the rights and duties of persons within its borders. It is an
obligation the burden of which cannot be cast by one State upon another,
and no State can be excused from performance by what another State may
do or fail to do. That separate responsibility of each State within its own
sphere is of the essence of statehood maintained under our dual system. Id.
14. Burdens Compared to Benefits
{¶ 20} Hardships to women seeking abortions, such as a 24-hour waiting period
with its associated increased travel time, have been held to not constitute an undue
burden. Casey at 886.
{¶ 21} However, recently, the United States Supreme Court, in Whole Woman’s
Health v. Hellerstedt, 579 U. S. ___, 195 L.Ed.2d 665, 689 (2016), set forth a more
exacting undue burden standard, where combined burdens to patients seeking abortions
are weighed against the health benefits of a regulation to determine whether an undue
burden exists.
{¶ 22} In Hellerstedt, the court scrutinized two new Texas laws, one of which
required a “physician performing or inducing an abortion * * * on the date the abortion is
performed or induced, have active admitting privileges at a hospital that * * * is located
not further than 30 miles from the location at which the abortion is performed or
induced.” Id. at 686. The United States Supreme Court affirmed the district court’s
finding that this new Texas law “imposed an ‘undue burden’ on a woman’s right to have
an abortion.” Id.
{¶ 23} The court noted the “purpose of the admitting-privileges requirement is to
help ensure that women have easy access to a hospital should complications arise during
an abortion procedure.” Id. at 686-687. However, the court “found nothing in Texas’
record evidence that shows that, compared to prior law (which required a ‘working
15. arrangement’ with a doctor with admitting privileges), the new law advanced Texas’
legitimate interest in protecting women’s health.” Id. at 687.
{¶ 24} The court further observed as a result of this new Texas law, about half of
the facilities providing abortions in the state closed. Id. at 688. “Those closures meant
fewer doctors, longer waiting times, and increased crowding” as well as increased driving
distances to clinics. Id. at 689. The court found “[i]ncreased driving distances do not
always constitute an ‘undue burden,’ but they are an additional burden,” and when
combined with other burdens and “viewed in light of the virtual absence of any health
benefits” of a regulation, an undue burden finding can be supported. Id.
{¶ 25} Here, we note the trial court properly found the undue burden framework
set forth in Casey applied to its constitutional inquiry of whether the licensing provisions
created a substantial obstacle for a woman seeking an abortion. While the trial court did
not provide any further examination under the undue burden framework, perhaps because
the parties focused their arguments on other matters and very limited evidence was
presented with regards to the undue burden issue, we find it necessary to analyze whether
the licensing provisions are violative of the undue burden standard.
{¶ 26} The record shows Capital Care is the sole abortion clinic remaining in
northwest Ohio. Capital Care’s patients are from Ohio, Michigan, Indiana and West
Virginia. Another abortion provider, the Center for Choice, which was located in
downtown Toledo, closed in June of 2013. Following the closing of the Center for
16. Choice, an additional 30 to 50 women per month from Toledo and other parts of Ohio
have sought services at Northland Family Planning Centers in the Detroit, Michigan area.
{¶ 27} If Capital Care were to close due to its failure to strictly adhere to the WTA
requirement or to secure a variance to that requirement, Capital Care’s patients would be
required to find another clinic. The nearest clinics to Capital Care are located in
Cleveland, Columbus and the Detroit, Michigan area.1 These patients would have to
travel a further distance to one of these alternate clinics to consult with doctors and their
staff and obtain services.
{¶ 28} The additional burdens brought about if Capital Care were to close will be
considered alongside the purported health benefits of the licensing provisions.
{¶ 29} With respect to the burdens, locating an alternate clinic and traveling to an
alternate clinic which is further away are two additional burdens Capital Care patients
would experience if Capital Care were forced to close. Other additional burdens these
patients would face include incurring extra travel expenses and expending additional time
in reaching the alternate clinic. These patients may also be subjected to the additional
burden of greater anxiety and apprehension in having to obtain abortion services in a
strange locality with unfamiliar staff and doctors. What is more, the influx of these
patients to alternate clinics may be onerous and burdensome to the existing patient base,
1 While we recognize the closest clinic to northwest Ohio is located in the state of Michigan, consideration of this clinic is not inconsistent with Currier, as there are other clinics which still remain in Ohio.
17. such that it may take patients longer to get an appointment or see a doctor or staff
member. Patient care may well suffer too, as a result of the arrival of additional patients
at the alternate clinics. Patients could receive less attention or compromised treatment as
a consequence of the increased number of patients the doctors and staff must assist.
{¶ 30} Regarding the purported health benefits of the licensing provisions, the
record shows Dr. Theodore Wymyslo, the former director of the ODH, when asked why
WTAs “are important from a safety perspective for the patient’s safety,” explained “if a
patient has a problem, there is already a preordained method by which the patient is
transferred. We want to make sure that their information accompanies the patient
wherever they go to deal with the problem.” The doctor opined having a prearranged
understanding with an organization is “very different from a public citizen just walking in
off the street.” He noted even if the patient is not at the ASF and a complication arises,
the patient would be directed to go to the WTA hospital for care. The doctor
acknowledged, however, that the patient would have the choice to go wherever the
patient would want to go; ASFs can advise patients, but patients make their own
decisions. The doctor further admitted R.C. 3702.303 requires the transfer agreement
from the facility to the hospital, not from the patient’s home or place of work to the
hospital. When Dr. Wymyslo was asked why calling 911 was not an adequate solution
for an emergency situation, he recognized all hospital emergency rooms are required to
do a medical assessment and treatment when an emergency patient comes in, but what
happens after that is not clearly defined.
18. {¶ 31} Terry Hubbard noted in the 12 years in which she has worked at or owned
Capital Care, there has never been the need to transfer a patient to the hospital.
Nevertheless, Ms. Hubbard developed a policy in case a patient did need to be transferred
from Capital Care to the hospital at the University of Michigan. Ms. Hubbard also
observed that if any emergency arose at Capital Care, 911 would be called and an
ambulance would immediately respond and transport the patient to the nearest hospital.
{¶ 32} Upon review, the record does not establish how and why it is advantageous
to a patient to have a WTA in place. First, R.C. 3702.303 only requires SFAs have a
WTA “with a local hospital that specifies an effective procedure for the safe and
immediate transfer of patients from the facility to the hospital when medical care beyond
the care that can be provided” at the ASF is necessary. There is absolutely no
requirement in the law for the transfer of a patient from the patient’s home or place of
work to the hospital. Second, the record clearly demonstrates that if a patient at Capital
Care or any ASF has a medical emergency, 911 is called and an ambulance transports the
patient to the nearest hospital for assessment and treatment. Last, and most important,
the need to transport a patient from Capital Care to a hospital for treatment is just about
nonexistent; the record reveals the need has not arisen in the past 12 years. Therefore the
necessity for a WTA is tenuous, at best.
{¶ 33} The many hardships which will or may occur if Capital Care were forced to
close have the effect of creating substantial obstacles in the path of a woman seeking an
abortion. These combined burdens weighed against the virtually nonexistent health
19. benefits of the licensing provisions as applied to Capital Care are violative of the undue
burden standard. Our undue burden finding is fully in agreement with the conclusion
reached in Hellerstedt.
Unconstitutional Delegation of Authority
{¶ 34} “[T]he law-making prerogative is a sovereign power conferred by the
people upon the legislative branch of the government * * * and cannot be delegated to
other officers, board or commission, or branch of government.” Matz v. J. L. Curtis
Cartage Co., 132 Ohio St. 271, 279, 7 N.E.2d 220 (1937). However, the General
Assembly of Ohio “may confer administrative power on an executive, a board or
commission.” Id.
As a general rule a law which confers discretion on an executive officer or
board without establishing any standards for guidance is a delegation of
legislative power and unconstitutional; but when the discretion to be
exercised relates to a police regulation for the protection of the public
morals, health, safety or general welfare, and it is impossible or
impracticable to provide such standards, and to do so would defeat the
legislative object sought to be accomplished, legislation conferring such
discretion may be valid and constitutional without such restrictions and
limitations. Id. at paragraph seven of the syllabus.
Nonetheless, a state is not authorized to grant a third party the absolute right to veto the
decision of a physician and patient for the patient to have an abortion. Planned
20. Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d
788 (1976).
{¶ 35} The trial court relied heavily on the ruling in Women’s Medical
Professional Corp. v. Baird, 438 F.3d 595 (6th Cir.2006), in determining that the
licensing provisions contained an unconstitutional delegation of authority. Baird was
also an abortion case but it addressed certain statutes enacted prior to H.B. 59. The
abortion facility tried but was unable to secure a WTA with an area hospital. Id. at 599.
The facility therefore requested from the director of the ODH a waiver of the WTA
requirement. Id. at 599-600. Baird, ODH’s director, denied the waiver request. Id. at
600. The facility appealed. The district court reversed Baird’s decision, finding the
WTA created “‘an undue burden and a substantial obstacle for women seeking
abortions’” and the law as applied violated procedural due process rights. Id. at 602.
Director Baird appealed. The appellate court reversed, ruling that since Baird retained
the authority to grant a waiver of the transfer agreement requirement, the state was
allowed to make the final decision and there was no impermissible delegation of
authority to a third party. Id. at 610.
{¶ 36} Here, unlike Baird, the licensing provisions include the unconstitutional
delegation of licensing authority to hospitals and physicians. The trial court properly
distinguished how the laws in Baird were different from the licensing provisions by
underscoring how the discretion held by Director Baird removed the possibility of
hospitals and physicians exercising final veto power. Id. at 610.
21. {¶ 37} Under R.C. 3702.304, which sets forth the variance procedure from the
WTA requirement, a variance application is not complete without a letter signed by a
physician, and a physician who signs such a letter must inform each hospital at which the
physician has admitting privileges. R.C. 3702.304(B)(2) and (3)(e). This indirect
authority to physicians and hospitals allows them to decide whether or not to provide
letters to SFAs which perform abortions, and permits the granting of WTAs or denial of
variances from WTAs based on unpredictable and uncertain reasoning rather than guided
and lawful standards. A physician may not want to sign the letter for an abortion
provider, or the hospital where the doctor has privileges may preclude the doctor from
signing such a letter. Even physicians who are able to sign the variance may still refuse
to do so due to hostility that these physicians could face. See Hellerstedt. R.C. 3702.304
grants hospitals and physicians powers which the state itself does not possess. See
Hallmark Clinic v. North Carolina, 380 F.Supp. 1153, 1158-1159 (E.D.N.C.1974). This
delegation of authority gives hospitals and doctors the opportunity to fill any void that the
licensing provisions, which prohibits state-funded hospitals from entering into WTAs
with abortion providers, did not fill. This could effectively eliminate the opportunity of
women to seek and obtain abortion procedures in northwest Ohio. We find this
delegation of authority unconstitutional, as did the trial court.
Single-Subject Rule
{¶ 38} The single-subject requirement provides “no bill shall contain more than
one subject, which shall be clearly expressed in its title.” Article II, Section 15(D), Ohio
22. Constitution. “By limiting each bill to one subject, the issues presented can be better
grasped and more intelligently discussed.” State ex rel. Dix v. Celeste, 11 Ohio St.3d
141, 142-143, 464 N.E.2d 153 (1984). This is especially important when the issue is
“inherently controversial and of significant constitutional importance.” Simmons-Harris
v. Goff, 86 Ohio St.3d 1, 16, 711 N.E.2d 203 (1999).
{¶ 39} The single-subject requirement is primarily in place to prevent the
“unnatural combinations of provisions” into an omnibus bill. Dix at 142-143. This
practice is known as logrolling. Id. at 143. However, a bill which embraces more than
one topic does not unquestionably violate the one-subject rule. Hoover v. Bd. of Cty.
Commrs., Franklin Cty., 19 Ohio St.3d 1, 6, 482 N.E.2d 575 (1985). As long as a
discernible relationship or common purpose exists between the provisions, and it cannot
be inferred that the bill is for the purpose of logrolling, the enactment may still be upheld.
Id. Courts should take a limited role in enforcing the single-subject requirement in order
to avoid undue interference with the purpose of legislation. State ex rel. Ohio Civ. Serv.
Employees Assn., AFSCME, Local 11, AFL-CIO v. State. Emp. Relations Bd., 104 Ohio
St.3d 122, 2004-Ohio-6363, 818 N.E.2d 688, ¶ 27. A legislative enactment is in violation
of the single-subject rule “only when a violation of the rule is manifestly gross and
fraudulent.” Beagle v. Walden, 78 Ohio St.3d 59, 62, 676 N.E.2d 506 (1997).
{¶ 40} H.B. 59, titled “Appropriations - Fiscal Year 2014-2015 State Budget,”
primarily deals with appropriations for state expenditures. ODH relies on Ohio Civ. Serv.
Employees Assn. for the proposition that appropriation bills are different from other acts
23. due to the broad range of items appropriation bills may encompass. Id. at ¶ 30. While it
is undeniable the potentially unlimited range of material appropriation bills can cover,
this alone is not sufficient to allow for any provision incorporated in an appropriation bill
to be valid under the one-subject requirement. Id. According to the Ohio Civ. Serv.
Employees Assn. court, allowing provisions that are bound solely because they are
appropriations renders the one-subject rule meaningless. Id. at ¶ 33. See also Cleveland
v. State, 2013-Ohio-1186, 989 N.E.2d 1072, ¶ 51 (8th Dist.). The Ohio Civ. Serv.
Employees Assn. court also took into consideration the lack of any explanation as to how
the statute, which excluded certain employees from collective-bargaining, was related to
the budget-related items. Id. at ¶ 34.
{¶ 41} ODH’s argument is analogous to that presented in Cleveland, where the
court determined that in theory provisions which essentially eliminate municipal police
powers could only potentially impact budgets of municipalities. Cleveland at ¶ 52. The
court rejected “the concept that such a tenuous, tangential link can serve as the unifying
thread” between the statute’s provisions and the appropriation bill. Id.
{¶ 42} Similar to the reasoning set forth in Ohio Civ. Serv. Employees Assn. and
Cleveland, we must find, as did the trial court, that the licensing provisions are in
violation of the single-subject rule. The link between the bulk of H.B. 59, which
primarily concerns the appropriation of state funds, and the provisions for licensing
abortion facilities, is difficult, at best, to discern. The inclusion of the licensing
provisions in the budget bill is a clear example of logrolling—the “unnatural
24. combinations of provisions.” In addition, merely because the licensing provisions are
tied to the appropriation bill does not shield the licensing provisions from the one-subject
requirement. This is particularly evident here given ODH’s failure to proffer any
explanation as to how licensing provisions aligns with the bulk of H.B. 59. Accordingly,
we observe no common nexus between the licensing provisions and the budget-related
items in H.B. 59. We therefore find the licensing provisions in H.B. 59 unconstitutional
as contrary to the single-subject rule of the Ohio Constitution.
Conclusion
{¶ 43} We find the sole assignment of error of the ODH not well-taken. We
further find R.C. 3702.303, 3702.304 and 3727.60 unconstitutional.
{¶ 44} The judgment of the Lucas County Court of Common Pleas is affirmed.
ODH is ordered to pay the costs of this appeal, pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
25. Capital Care Network of Toledo v. State of Ohio Dept. of Health C.A. No. L-15-1186
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
26.