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Ohio judge rules restrictions imposed on Toledo abortion provider are unconstitutional

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COLUMBUS, Ohio — A judge in Ohio declared restrictions imposed on a Toledo abortion clinic unconstitutional on Friday, allowing the facility to remain open for now.

Lucas County Common Pleas Judge Myron Duhart said in his decision that the state exceeded its regulatory authority over Capital Care Network of Toledo and violated a provision in Ohio's constitution when state lawmakers inserted two licensing changes on abortion clinics into Ohio's 2013 budget bill.

Attorney General Mike DeWine's office said he will appeal.

At issue is the Ohio Department of Health's finding last year that Capital Care lacked a required patient-transfer agreement with a local hospital for emergencies and so was operating outside the law. The clinic appealed, arguing that its agreement with an Ann Arbor, Michigan hospital met the state's criteria.

Capital Care had gone out of state to find a hospital to partner with after passage of a budget amendment prohibited in-state public hospitals from signing the mandatory transfer agreements with abortion clinics. The state said Ann Arbor, more than 50 miles away, did not qualify as "local."

The clinic's suit also challenged a second amendment to the 2013 budget that gave the state health director authority to deny exemptions from the transfer-agreement requirement without cause.

DeWine had asked the judge to expedite the clinic's closure in a filing made Thursday at about 4 p.m., just as senators in Columbus were debating another set of abortion-related restrictions that had been added to the state's 2015 budget bill.

About 90 minutes after DeWine's filing, the Republican-controlled Senate surprised onlookers and approved a budget revision from Democratic Sen. Sandra Williams of Cleveland to remove language aimed at closing the Toledo clinic by requiring hospitals used in patient-transfer agreements to be within 30 miles of the clinic. The Ann Arbor hospital designated by Capital Care is about 50 miles away.

It was not immediately clear whether Senate President Keith Faber, the powerful GOP leader who allowed Williams' amendment to sail through, knew of DeWine's filing happening in a city 150 miles northwest of the Statehouse. It was first publicized Friday by Ohio Right to Life, the state's largest anti-abortion group. A spokesman for Faber did not immediately respond to an email request for comment.

DeWine spokesman Dan Tierney said Thursday's court filing was unrelated to the Senate vote.

"I can tell you that our filing was completely unrelated to budget discussions about language on a similar topic," he said.

After her amendment was accepted, Williams cast the lone Democratic vote on the budget, enough to allow Senate leaders and Republican Gov. John Kasich — a likely candidate for president — to call it "bipartisan." One Republican, Sen. Kris Jordan of Powell, voted no.

Kellie Copeland, executive director of NARAL Pro-Choice Ohio, said the judge's decision shows lawmakers shouldn't use the budget to restrict abortions.

"The Ohio legislature and John Kasich ought to read Judge Duhart's ruling carefully," she said in a statement, adding that the provisions targeting the Toledo clinic in the current budget would "also likely to be found to violate the due process rights of abortion providers and be found unconstitutional. It's time for Kasich and DeWine to stop wasting taxpayer dollars on their personal quest to outlaw abortion."

An official at the Toledo clinic reached Friday morning said they were not aware of DeWine's filing.

NARAL praised Williams' amendment earlier in the day, saying she had "made a deal to remove the language." Williams also cited removal of the language among reasons she lent her support to the budget bill.

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