“Plaintiffs ask the court to force UCMC and plaintiffs, both of whom are private parties, to enter into private contracts, even though they are not otherwise obligated to do so by law,” hospital attorney Russell Sayre wrote in the dismissal motion. “This court should decline plaintiffs invitation to entertain claims seeking such extraordinary and inappropriate relief.”
The state legislature and Hodges have systematically made it nearly impossible for the abortion clinics to comply with the law and keep operating. Medical transfer agreements are required for a license to stay in business. But public hospitals like UC are prohibited from entering into these agreements. Private hospitals are not subject to this law but none of the those hospitals in Cincinnati or Dayton will contract with the clinics, according to Planned Parenthood attorney Jennifer Branch.
“The state has set up a system that only applies to abortion ASFs (ambulatory surgical facility) that says you can’t get a license because you can’t find a private hospital to give you one (a transfer agreement),” Branch said. “I’m saying that’s an unconstitutional process that they have created, that only applies to abortion clinics.”
The clinics can apply for a variance — and they have — offering to partner with physicians who have privileges at hospitals to provide emergency medical assistance. At first Planned Parenthood offered to partner with three doctors and Hodges denied the variance as inadequate. The clinic found a fourth doctor and that variance is pending.
Branch has also challenged the constitutionality of another new wrinkle in the law that gives Hodges 60 days to approve or deny a variance and if he doesn’t act at all, the variance is deemed denied and the center’s license is automatically suspended.
Judge Michael R. Barrett issued a preliminary injunction almost a month ago, prohibiting Hodges from enforcing those provisions in the law during the lawsuit, because he found Planned Parenthood stands a good chance of prevailing.
“The threatened constitutional violation is a sufficient ground upon which to find irreparable harm if the injunction does not issue,” Barrett wrote. “Moreover, the inability to operate an ongoing business for an unknown period of time constitutes irreparable harm that cannot be fully compensated by monetary damages.”
Branch has until the end of the month to reply to the dismissal motion, she won’t reveal what her arguments might be. However, she did say she is not forcing the hospital to enter into a contract, she is merely asking that the contract they previously had be reinstated.
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