Capital Care Network of Toledo v. State of Ohio Dept. of Health

[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:

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 (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.

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 (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.

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 {¶ 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

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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

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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.

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 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.

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