News Law and Policy

Cincinnati Abortion Provider Sues Ohio State for ‘Unreasonable and Politically Motivated’ Clinic Closure

Nina Liss-Schultz

According to the lawsuit, the Ohio Department of Health arbitrarily revoked the clinic’s variance permit, which it needed by law, and then revoked the clinic’s license to operate because it no longer had a variance.

An abortion provider in Cincinnati, Ohio, is suing the state Department of Health (ODH), alleging that the department’s move to close the clinic was unreasonable and politically motivated.

The writ of mandamus, filed by the Lebanon Road Surgical Center on Tuesday, focuses on the reasoning behind the clinic’s impending closure: According to the lawsuit, the ODH arbitrarily revoked the clinic’s variance permit, which it needed by law, and then revoked the clinic’s license to operate because it no longer had a variance.

The writ is just the latest move in a battle that began in 2012 to keep the clinic open.

Ohio law requires that ambulatory abortion providers have agreements with local hospitals to transfer patients in the case of an emergency. Alternatively, the law also allows the clinic to operate with a variance permit, if the clinic can show it meets the standards of the law in another way.

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The Lebanon Road clinic had been operating with a variance and in October 2012 submitted a request to renew both the variance and its license to operate. Later that month, the state Department of Health issued proposals both refusing to renew and revoking the clinic’s license. The clinic was allowed to stay open pending a hearing and final decision by the department director, the former of which was held in September 2013.

The following January, the ODH director denied the clinic’s request for a variance, and in a separate order denied its license renewal “based on its failure to obtain a written transfer agreement or variance.” The director’s decision has been in the appeal process since January, and a Hamilton County judge is scheduled to hear oral arguments this Friday.

The Lebanon Road clinic says that the director faced significant political pressure to close the clinic, thus preventing him from acting based on his own discretion as a medical professional. According to the lawsuit, the ODH received 240 emails from anti-choice advocates asking that the clinic’s license be revoked. The results of an open records request revealed that the Ohio Department of Health “cleared its response” to the emails “with the Governor’s office and reveal ongoing communications among [the Department], the administration, and Ohio Right to Life about LRSC’s license.”

The lawsuit also says that political pressure and the culture of hostility toward abortion in the state makes finding a transfer agreement with a local hospital increasingly difficult for abortion providers. In a letter submitted as evidence in the case, the CEO of the Christ Hospital, located in Cincinnati, illustrates this point in explaining why the hospital won’t come into a transfer agreement. The letter reads:

We are not able to execute formal transfer agreement with the Lebanon Road Surgery Center given the significant negative messages we have received from the community and the public’s access to those agreements under the Ohio Open Records Act. It is unfortunate that Ohio is now requiring a separate transfer agreement.

An investigation by the Cincinnati Enquirer in February found that “from the start, top officials in the health department were involved in the license review process, directing [ODH staff] not to follow normal practices.” A retired ODH regulator, Roy Croy, told the Enquirer that the department was “looking for anything” to close the clinic, and that “I was pretty sure that when it came time for renewal of the license that it was going to be very unlikely that it would be renewed.”

The struggle to remain open in the face of coordinated political attacks is one that has already plagued clinics across the state. The Ohio Department of Health recently revoked the license of a Toledo-based provider because the clinic did not hold an agreement with a nearby hospital. The Toledo clinic has since appealed the decision.

News Abortion

Abortion Providers Call for Closure of Troubled Virginia Abortion Clinic

Sharona Coutts

“Evidence of wrongdoing at Brigham’s American Women’s Services facility in Fairfax is part of a clear pattern of repeated and serious misconduct that poses a significant threat to patient safety, and which cannot be allowed to go unchecked in Virginia," said Vicki Saporta, president and CEO of the National Abortion Federation.

A group of pro-choice organizations, including the National Abortion Federation (NAF), on Tuesday called on the Virginia State Health Commissioner Dr. Marissa J. Levine to permanently close any abortion clinics in that state associated with the troubled abortion provider, Steven Chase Brigham.

The calls follow the release last week of a damning inspection report from Virginia’s Department of Health, based on a two-day survey of the American Women’s Services facility in Fairfax.

State inspectors found filthy and dangerous conditions in the clinic that posed a substantial risk to the safety of patients, staff, and visitors, according to Erik Bodin, the director of the Office of Licensure and Certification, which conducted the inspection.

Among the findings in the 52-page report were observations of dirty equipment, smeared with “foreign material” and yellow and brown “splatter” that had dried in place. Surveyors reported that a staff member went into a bathroom and unblocked a patient toilet, and then participated in an abortion procedure—even holding the patient’s hand—without first changing clothes or properly cleaning his or her hands.

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A doctor whose gown was smeared with blood after performing an abortion held up the gown and hung it on the back of the door for future use, saying of the soiling, “Oh, it’s not that bad.” Inspectors found expired medications and discovered that annual maintenance checks on key machinery had not been completed.

In her letter to Levine, Vicki Saporta, president and CEO of NAF, said that these findings were “just the latest assessment of Brigham, who has come under fire from state licensing boards and health departments throughout his career.”

“Evidence of wrongdoing at Brigham’s American Women’s Services facility in Fairfax is part of a clear pattern of repeated and serious misconduct that poses a significant threat to patient safety, and which cannot be allowed to go unchecked in Virginia,” Saporta wrote. “In an area of medical practice populated by highly qualified and professional providers, Steven Brigham is an egregious and dangerous exception. NAF urges the Department of Health to act swiftly to protect the health and safety of Virginia women by permanently closing Brigham’s clinics in the state.”

Brigham, in a phone interview with Rewire, rejected the notion that he was directly involved in the provision of abortion care services at the Fairfax clinic, claiming that he was neither an employee nor an owner of that clinic. Brigham said his only connection with the Fairfax location was in giving staff occasional advice.

He said that he hadn’t visited that clinic in at least three years, and that he derived no profit from that clinic. He characterized Saporta’s letter as an ad hominem attack.

Courtney Rice, a spokesperson for American Women’s Services, provided an email statement to Rewire in which she confirmed that Brigham is not a physician or employee in that office.

Rice said that the clinic was making efforts to comply with regulations and regain its license.

“We are disappointed that our Fairfax office temporarily fell below the high standards it has long adhered to and we are cooperating with the Department of Health to correct any deficiencies identified, starting with the termination of our Administrator,” she wrote.

Despite his claims to Rewire, various public records suggest that Brigham retains some formal connections to the Fairfax clinic, the legal name of which is Virginia Health Group.

Virginia’s State Corporation Commission lists Brigham as the registered agent for the company, and the Virginia Secretary of State’s site lists him as the company director. Yet his precise role with American Women’s Services remains murky; he did not directly answer Rewire’s questions as to exactly what he did with that company, or whether he holds any ownership or control.

Brigham’s role in connection with abortion clinics in multiple states has long been a subject of controversy among regulators and other abortion providers.

Over three decades, he has encountered frequent troubles with health department authorities in New York, New Jersey, Pennsylvania, and Maryland, among others, and has faced multiple allegations of substandard practice, including contributing to the serious injury of several patients.

New Jersey in 2014 revoked Brigham’s medical license in connection with multiple allegations of misconduct, including an incident that resulted in serious injuries to a patient who had been transported from New Jersey to Maryland for a surgical abortion.

Reputable abortion providers have spent years trying to bring Brigham and his clinics to the attention of regulators in the states in which he worked, as Rewire reported in 2013

Providers expressed frustration that despite disciplinary actions being brought against him, Brigham has been able to continue working in abortion care, either by practicing in different states or by taking a behind-the-scenes role in clinics that he controlled through American Women’s Services. With at least 14 clinics in multiple states, American Women’s Services remains among the country’s largest chains of abortion clinics.

Even if Brigham owns all or part of American Women’s Services, that would make little difference to the Fairfax clinic’s chances of regaining its license, Bodin said, because there is no requirement in Virginia that the owner or operator of a medical clinic possess a medical license. Rather, the health department must simply assess whether the clinic meets the standards set forth in regulations governing abortion clinics.

Bodin said that representatives of Virginia Health Group are scheduled to appear before an administrative law judge on May 11, where they will have an opportunity to show that they have fixed the many deficiencies cited in the inspection report.

News Abortion

Planned Parenthood Sues to Keep Clinic Open in Columbia, Missouri (Updated)

Jenn Stanley

Planned Parenthood’s Columbia Health Center in Missouri halted its abortion services last week, as the clinic is set to lose hospital admitting privileges on December 1.

UPDATE, December 1, 10:59 a.m.: A federal judge on Monday temporarily blocked the Missouri Department of Health and Senior Services from revoking the Columbia Planned Parenthood clinic’s license to perform abortions.

Planned Parenthood of Kansas and Mid-Missouri filed a federal lawsuit against the acting director of Missouri’s health department on Monday to block a measure that would leave one abortion provider in the state.

Planned Parenthood’s Columbia Health Center in Missouri halted its abortion services last week, as the clinic is set to lose hospital admitting privileges on December 1. The clinic’s physician, Colleen McNicholas, lost her admitting privileges with the University of Missouri Health Care system after university officials voted to discontinue her “refer and follow” privileges. That resulted from a legislative investigation of abortion services launched by Republican lawmakers.

The lawsuit seeks to stop efforts by the agency from revoking its license while it searches for a provider who can obtain privileges at a nearby hospital, as required under Missouri law.

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The order will expire Wednesday unless the court extends it following a hearing on Planned Parenthood’s claims that the agency failed to give McNicholas sufficient time to seek alternative privileges needed to continue work at the Columbia health center, or give Planned Parenthood enough time to locate another physician.

The question of McNicholas’ admitting privileges is just one part of a larger controversy at the University of Missouri about whether the publicly funded university should be associated with an organization that provides abortion services—a fight spearheaded by Republican state Sen. Kurt Schaefer.

Schaefer has tried to strip the university of all associations with Planned Parenthood after the release of a series of surreptitiously recorded and highly edited videos published by the anti-choice front group known as the Center for Medical Progress (CMP). CMP has worked closely with GOP legislators this year to attack Planned Parenthood’s funding.

Missouri’s Republican-dominated legislature has passed some of the nation’s most restrictive abortion laws in recent years. One state GOP lawmaker has said a University of Missouri doctoral student should not be allowed to do research on the Republican-backed forced 72-hour waiting period for patients seeking abortion care.

Former Chancellor R. Bowen Loftin ended Planned Parenthood’s “refer and follow” privileges under pressure from the state’s anti-choice GOP lawmakers. After Loftin stepped down from his post amid protests over race relations on campus, a group calling itself Mizzou for Planned Parenthood launched a social media campaign to urge the university to reverse the decision.

The group will hold a vigil outside the Columbia Health Center Monday night, followed by a march on an administrative building at the University of Missouri.

Hank Foley, the interim chancellor, issued a statement today before the vigil, saying he would not overturn the decision to revoke admitting privileges.

I personally have given this issue much thought and have been touched by many of the emails and letters our office has received—especially those from women who have relied on Planned Parenthood for health care. I am sympathetic to many of the situations and extenuating circumstances these women have found themselves in—situations and circumstances that lead to decisions most women will never have to make.

However, I will continue to support the Medical Staff Executive Committee at MU Health Care. Thus, after a thorough policy review by MU Health Care, refer and follow privileges will be discontinued Dec. 1, 2015.

Prior to halting services, the Columbia Health Center dispensed medications that induced abortions two days a month, averaging about 20 to 25 abortions on each of those days, said Laura McQuade, CEO of Planned Parenthood of Kansas and Mid-Missouri.