In addition to the legal quirks, the recent 6CA case about the (nearly successful) efforts by the state to force an abortion clinic to close provides a good window into the strategy of incrementally dismantling Roe, as well as the folly of the appeasement via “resonable regulation” strategy.
The case (Women’s Professional Medical Corp. v. Baird) concerns an Ohio regulation, requiring abortion clinics to have a “written transfer agreement,” that has forced a clinic in Dayton to close. The court, as iocaste explains, eventually allowed the clinic to stay open on a technicality, but rejected the claim that the regulation as applied constituted an “undue burden” to abortion, which is the standard by which abortion regulations are evaluated under the controlling case. These kinds of licensing regulations, as anyone who say the chilling Frontline documentary about abortion in Mississippi knows, are a very effective way of preventing clinics from operating, and should the Court uphold them the effect on abortion access will likely be severe.
This case is initially tricky, because on its face the regulation seems reasonable; all ambulatory surgical facilities have to have a license, and the director of the Ohio Department of Health can create regulations to require a license, and issue a waiver. The requirement that a clinic have an agreement with another hospital to treat patients in an emergency does not, on its face, constitute an undue burden; protecting the health of patients is certainly a legitimate state interests. So the question is, is the regulation actually trying to protect health, or is about trying to shut down abortion clinics for no good reason? It’s an easy question when you examine this history. Dr. Haskell’s clinic applied to an agreement, and one hospital accepted. However, “Dr. William Stalter, a pro-life advocate and member of the Board of Trustees of Miami Valley, objected to the written transfer agreement. He called the head of Premier Health Care, the owner of Miami Valley, to voice his concerns. Within four days, Miami Valley rescinded its written transfer agreement with the Dayton clinic, offering no explanation for its decision.” He then applied for a waiver for the requirement, noting that he received a letter from the Miami Valley Hospital Emergency and Trauma Center that it would “be available to any of your patients that have an emergency medical condition,” in addition to a tacit agreement with doctors (who did not want to identify themselves for understandable security reasons.) So how, and why, did the government react?
“Also during this time period, Jodi Govern, Chief Counsel for ODH, communicated on a regular basis with representatives of right-to-life groups regarding the status of the license application. Before Miami Valley rescinded its transfer agreement, Govern communicated with a member of Ohio Right to Life to tell her of two deficiencies in the Dayton clinic’s application. She told the Ohio Right to Life member that she “would appreciate it if [she] could share this information with [her] colleagues in Dayton.” After Miami Valley rescinded the transfer agreement, representatives of Dayton Right to Life and Ohio Right to Life asked Govern for another update. Govern responded that the agreement would no longer be in effect after December 20, 2002 and that “we are exploring options that we can exercise subsequent to that date, and will keep you appraised.” A Dayton Right to Life member then asked for more detailed information on what could be expected. Govern e-mailed her and the Ohio Right to Life representative stating that “we have no intention of letting this drag out.”
On January 9, 2003, Director Baird denied the waiver request, citing the lack of a written transfer agreement. In a letter, he stated, “It is my belief that the tacit agreement made between the Women’s Medical Center Medical Director and unnamed members of an area Obstetrics-Gynecology practice is not a sufficient protection” for patients. That same day, Director Baird ordered Dr. Haskell to cease operating the Dayton clinic.”
So, the Ohio government, acting in collaboration with various anti-choice groups, ordered the clinic shut down. But might there be a valid medical reason here, even if the decision was transparently made to shut down the clinic?
Dr. Haskell testified that, in his experience, patients rarely need to be hospitalized. If they do need to be hospitalized, it is usually for problems that “are not truly immediately life-threatening” but require observation and care in a hospital. Approximately once every two years, a patient at either the Cincinnati or Dayton clinic needs an urgent transfer to the hospital. Only on one or two occasions in twenty-five years did the clinic need to call 911 for an immediate hospital transfer, because the patient was suffering life-threatening complications. Not once have patients requiring medical attention been denied admission to Dayton hospitals.
Dr. Haskell further testified that his clinic has a written protocol that the staff follows in medical emergencies. The clinic also has a back-up medical group that its staff can call for assistance and to ensure a transfer to a local emergency room. The clinic has used the back-up group approximately four times over the last twenty years.
A Miami Valley emergency room physician testified that the Miami Valley emergency room would triage, screen, and stabilize any patient presenting at its hospital, including WMPC’s patients. Another physician testified that he was not personally aware of a single instance in which the presence of a transfer agreement made a difference in the care a patient received. Expert witnesses agreed that written transfer agreements do not ensure optimum patient care.
So the regulation was shutting down the clinic despite the lack of any evidence that the regulation applied in this way was protecting patients at all. (Does anybody think that a hospital wouldn’t admit an emergency patient because she had just had an abortion, whether there’s a written agreement or not?) So it’s pretty clear: as applied the regulation was not about maternal health, but about trying to restrict abortion access by forcing a clinic to close. So surely this is an “undue burden”?
We conclude that, while closing the Dayton clinic may be burdensome for some of its potential patients, the fact that these women may have to travel farther to obtain an abortion does not constitute a substantial obstacle.
So, the state can close a clinic entirely, as a transparent attempt to limit abortion access and that is not an “undue burden” because some women can just travel farther. The court also seems to assume that the few remaining clinics can simply absorb the 3,000 patients a year left stranded, a rather problematic assumption. (Needless to say, the fact that women in non-salaried jobs, or who may be single mothers, or who can’t afford hotel rooms may be seriously burdened by this is irrelevant; as with all such abortion regulations, they seem to be evaluated with a generic middle-class woman who has plenty of resources at her disposal), and despite the fact that as applied the regulations have no discernible relationship to a legitimate state interest (in other words, the regulation is both “undue” and a substantial “burden.”) And the court also evaluates the regulation in and of itself, and not in combination with the other regulations to analyze any cumulative effects.
In other words, the trimester framework of Roe clearly provided more protection than the “undue burden” standard of Casey, at least given the minimalist readings given to the latter by many courts. Basically, when 1)the only apparent standard used is the total number of women denied abortions by a particular regulation, 2)the effects of regulations on different classes of women is ignored, and 3)the effect of the regulations is evaluated discretely, then virtually no regulation will fall. And as states continue to get more creative, this is chilling indeed. We’re stuck with Casey (as long as there’s any constitutional protection at all) but at least it needs to be given some teeth, and striking down state actions such as these is a good start.