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Today In the Arbitrary Abortion Obstacle Course

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Ohio has set up a classic regulatory Catch-22 to damage the reproductive rights of Ohio women, by 1)requiring abortion clinics to set up transfer agreements, 2)banning state hospitals from entering into them, and 3)then ruling a transfer agreement with a hospital over state lines as illegal because it’s too far away. It is transparent that this regulatory framework is not designed to protect the health of women, but to force clinics to close. In the case of Toledo’s only abortion clinic, it will almost certainly do exactly that.

It seems clear that these restrictions are unconstitutional under the Supreme Court’s recent decision in Whole Women’s Health. A majority of the Ohio Supreme Court, however, refused to consider the federal constitutional question, although it had been affirmatively raised by the state. As the Chief Justice argued in dissent, this conclusion was wrong (see section B.) The court also rejected a challenge based on the Ohio constitution’s single-subject requirement, although the restriction was included in a budget bill.

In short, sometimes the crudest versions of legal realism are indeed applicable. And also consider these laws during the next round of ridiculous “John Kasich, kindly reasonable moderate” fluffing.

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