[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Capital Care Network of Toledo v. Dept. of Health, Slip Opinion No. 2018-Ohio-440.] 

*Reporter’s Note: This cause was decided on January 24, 2018, but was released to the public on 

February 6, 2018, subsequent to the resignation of Justice William M. O’Neill, who participated in 

the decision. 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2018-OHIO-440

CAPITAL CARE NETWORK OF TOLEDO, APPELLEE, v. OHIO DEPARTMENT OF 

HEALTH, APPELLANT. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Capital Care Network of Toledo v. Dept. of Health, Slip 

Opinion No. 2018-Ohio-440.] 

Ohio Adm.Code.3701-83-19(E)—R.C.119.12—Revocation of ambulatorysurgical-facility license for failure to have a written transfer agreement by 

Ohio Department of Health supported by reliable, probative, and 

substantial evidence and in accordance with law—Agreement with a 

hospital 52 miles away rather than nearby hospital does not allow for the 

transfer of patients “in the event of medical complications, emergency 

situations, and for other needs as they arise.” 

(No. 2016-1348—Submitted September 12, 2017—Decided January 24, 2018.*) 

APPEAL from the Court of Appeals for Lucas County, 

No. L-15-1186, 2016-Ohio-5168. 

_______________________ 

 
SUPREME COURT OF OHIO

2

SYLLABUS OF THE COURT

The order of the Ohio Department of Health revoking the health care facility license 

of Capital Care Network of Toledo is supported by reliable, probative, and 

substantial evidence and is in accordance with law because Capital Care 

operated without a written transfer agreement for a period of five months 

and its subsequent agreement with the University of Michigan does not 

satisfy the Ohio Administrative Code requirement to establish and maintain 

written transfer agreements for patients in emergency situations. 

_______________________ 

O’DONNELL, J.

{¶ 1} This matter raises important issues that impact constitutional rights. 

The case has been thoroughly briefed, well-argued, and presents single subject and 

due process challenges to provisions the legislature enacted as part of 2013 

Am.Sub.H.B. No. 59 (“H.B. 59”), a biennial budget bill, which arguably impede 

rights guaranteed to women as declared by the United States Supreme Court in Roe 

v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). 

{¶ 2} But in the last analysis, this appeal involves a policy decision made 

by the legislative department of government in vesting the authority to license 

ambulatory surgical facilities in the Ohio Department of Health (“ODH”) and in 

defining the scope of judicial review of its decisions. Adhering to the doctrine of 

separation of powers, we address the legal issue presented to our court, which 

concerns whether the order of the director of the Department of Health for the state 

of Ohio revoking the license of Capital Care Network of Toledo for failure to 

comply with Ohio Adm.Code 3701-83-19(E) is supported by reliable, probative, 

and substantial evidence and is in accordance with law. 

{¶ 3} Since 1996, ODH regulations have required ambulatory surgical 

facilities in Ohio to have a written transfer agreement with a hospital to facilitate 

treatment in the event of an emergency or an urgent complication beyond the 
January Term, 2018 

3

capability of the facility. ODH interprets Ohio Adm.Code 3701-83-19(E) to require 

ambulatory surgical facilities to have a written transfer agreement with a nearby 

hospital—specifically, a hospital within 30 minutes’ transport from the facility. In 

2013, the General Assembly codified the rule in R.C. 3702.303(A), expressly 

requiring written transfer agreements to be negotiated with local hospitals. 

{¶ 4} Capital Care operated with a negotiated written transfer agreement 

with the University of Toledo Medical Center but in April 2013, the university 

advised Capital Care that it would not renew its contract, which expired on July 31, 

2013. Capital Care continued operating without an agreement until January 20, 

2014, when it negotiated a new transfer agreement with the University of Michigan 

Health System to transfer patients to its hospital in Ann Arbor, Michigan, 52 miles 

from Capital Care’s Toledo facility. ODH held an administrative hearing and as a 

result revoked and refused to renew Capital Care’s health care facility license based 

on its violation of both R.C. 3702.303(A) and Ohio Adm.Code 3701-83-19(E). 

{¶ 5} On Capital Care’s administrative appeal, the Lucas County Common 

Pleas Court reversed the license revocation, finding R.C. 3702.303(A) 

unconstitutional and the revocation contrary to law. The Sixth District Court of 

Appeals affirmed, holding that R.C. 3702.303(A) and related statutes violate the 

Single Subject Clause of Article II, Section 15(D) of the Ohio Constitution, 

unlawfully delegate licensing authority to private parties, and impose an undue 

burden on obtaining an abortion. 

{¶ 6} Neither court, however, examined the authority of ODH to revoke 

Capital Care’s license for operating without a valid written transfer agreement in 

violation of Ohio Adm.Code 3701-83-19(E). In this case, the order of the Ohio 

Department of Health revoking the health care facility license of Capital Care 

Network of Toledo is supported by reliable, probative, and substantial evidence and 

is in accordance with law because Capital Care operated without a written transfer 

agreement for a period of five months and its subsequent agreement with the 
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4

University of Michigan does not satisfy the Ohio Administrative Code requirement 

to establish and maintain written transfer agreements for patients in emergency 

situations. 

{¶ 7} Accordingly, we reverse the judgment of the court of appeals and 

reinstate the decision of the Ohio Department of Health. 

Facts and Procedural History 

{¶ 8} Capital Care is an ambulatory surgical facility located in Toledo, 

Ohio, that provides abortion services. All ambulatory surgical facilities in Ohio are 

required by statute to obtain a health care facility license from ODH, conditioned 

on compliance with quality standards established by ODH. R.C. 3702.30(A)(4)(a), 

(B), (D), and (E)(1). 

{¶ 9} Ohio Adm.Code 3701-83-19(E) establishes that each ambulatory 

surgical facility “shall have a written transfer agreement with a hospital for transfer 

of patients in the event of medical complications, emergency situations, and for 

other needs as they arise.” The regulations further authorize ODH to grant “a 

variance or waiver from any building or safety requirement established by Chapter 

3701-83 of the Administrative Code, unless the requirement is mandated by 

statute.” Ohio Adm.Code 3701-83-14(A). 

{¶ 10} In 2010, Terrie Hubbard purchased Capital Care, which had been 

licensed as an ambulatory surgical facility by ODH. In August 2012, she obtained 

a written transfer agreement with the University of Toledo Medical Center. 

However, in April 2013, the university informed Hubbard and ODH that it would 

not renew the written transfer agreement with Capital Care, and it expired on July 

31, 2013. 

{¶ 11} On July 30, 2013, ODH inquired whether Capital Care had 

negotiated a new written transfer agreement, but Capital Care did not respond. 

ODH inspected the facility on August 1, 2013, and discovered that Capital Care 

had neither a written transfer agreement nor a written plan for complying with Ohio 
January Term, 2018 

5

Adm.Code 3701-83-19(E). The next day, ODH Director Theodore E. Wymyslo, 

M.D., issued notice of his intent to revoke and refuse to renew Capital Care’s health 

care facility license. ODH granted Capital Care a hearing but continued it on the 

ODH director’s motion. 

{¶ 12} Thereafter, effective September 29, 2013, the General Assembly 

codified the written transfer agreement rule when it enacted R.C. 3702.303 as part 

of the biennial budget bill, H.B. 59, requiring ambulatory surgical facilities to 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. 

The statute further permits the ODH director to grant a variance from the written 

transfer agreement requirement pursuant to R.C. 3702.304(A) if that requirement 

would cause undue hardship, the variance would not jeopardize the health and 

safety of any patient, and the facility has an agreement with a physician who has 

admitting privileges at a local hospital to provide back-up coverage. H.B. 59 also 

enacted R.C. 3727.60(B), which prohibits public hospitals from entering into 

written transfer agreements with facilities performing nontherapeutic abortions or 

from authorizing a doctor to use the doctor’s staff privileges to support a variance 

application. 

{¶ 13} Capital Care never sought a waiver or variance of the written transfer 

agreement requirement pursuant to either the rule or the statute. Rather, on January 

20, 2014, it entered into a written transfer agreement with the Regents of the 
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6

University of Michigan on behalf of the University of Michigan Health System in 

Ann Arbor, Michigan, 52 miles from Capital Care. 

{¶ 14} On February 18, 2014, Dr. Wymyslo again issued notice of his intent 

to revoke and refuse to renew Capital Care’s health care facility license, explaining 

that “[t]he written transfer agreement violates the R.C. 3702.303(A) requirement 

that the written transfer agreement be with a local hospital.” 

{¶ 15} ODH conducted a hearing encompassing both the August 2, 2013 

and February 18, 2014 notices. Dr. Wymyslo explained that the written transfer 

agreement requirement exists to protect the health of patients in the event of an 

emergency or urgent complication beyond the capability of the ambulatory surgical 

facility to handle by ensuring that the facility has made advance arrangements to 

transfer the patient and the patient’s records to a hospital. He noted that transfer to 

a hospital through its emergency room decreases the quality of care because it 

“wastes valuable hours of time” if the emergency room staff has “to reconstruct 

what happened [and] learn past information” and admission to the hospital is not 

prearranged. Dr. Wymyslo pointed out that the written transfer agreement makes 

admission and treatment “faster and more efficient and [provides] better quality 

care.” 

{¶ 16} Based on his experience credentialing physicians providing 

emergency- and urgent-care backup at Miami Valley Hospital, Dr. Wymyslo 

testified that his expectation was that a written transfer agreement needs to be with 

a hospital within 30 minutes’ transport from the facility in order to effectively 

provide for treatment in the event of emergencies and urgent complications. He 

explained that “anything more than a 30-minute time period becomes a patient 

safety and quality of care concern” and that “every hospital in Ohio” has used 30 

minutes when they credential physicians as “a reasonable period of time in which 

an individual should have access to emergency intervention.” Dr. Wymyslo 

described this 30-minute period as what is “reasonable, customary and in the best 
January Term, 2018 

7

interest of the patient,” in responding to emergencies and urgent complications. He 

also clarified that ODH had relied on the same 30-minute standard in reviewing 

written transfer agreements both before and after R.C. 3702.303(A) required them 

to be with local hospitals. And based on the 52-mile distance from Capital Care to 

the University of Michigan Health System, he decided that “clearly this was going 

to be a greater than 30-minute period of time between the time of an emergency 

arising and the time that they could access care in this facility.” 

{¶ 17} Hubbard, Capital Care’s owner, testified that she had been unable to 

obtain a written transfer agreement with any Toledo hospital, and she indicated that 

in the event of an emergency, the clinic’s staff would call 9-1-1 and the fire 

department would transport the patient to Toledo Hospital, the closest hospital, 

regardless of whether the facility had a written transfer agreement with a different 

hospital. Further, she explained, patients with complications that were not 

emergencies would be transported to Ann Arbor by helicopter or ambulance. 

Although she claimed that flight time to Ann Arbor from the facility was 15 to 20 

minutes, she admitted that it would take approximately 50 to 60 minutes for a 

helicopter to reach the facility from its base in Licking County. She also admitted 

that she had no contract with the air-ambulance provider to ensure that a helicopter 

would be available when needed. 

{¶ 18} The hearing examiner found that Capital Care had operated for more 

than five months without a written transfer agreement in violation of Ohio 

Adm.Code 3701-83-19(E) and that the written transfer agreement it subsequently 

obtained was not with a local hospital, in violation of R.C. 3702.303(A), and he 

concluded that “the Director’s August 02, 2013 and February 18, 2014 decisions to 

not renew, or to revoke the license of Capital Care, are valid.” ODH’s interim 

director, Lance D. Himes, approved the hearing examiner’s report and 

recommendation and issued an adjudication order on July 29, 2014, revoking and 
SUPREME COURT OF OHIO

8

refusing to renew Capital Care’s health care facility license “in accordance with 

R.C. 3702.32, 3702.303(A), R.C. Chapter 119, and OAC 3701-83-19(E).” 

Capital Care Appeals the License Revocation 

{¶ 19} Capital Care appealed the adjudication order to the Lucas County 

Common Pleas Court pursuant to R.C. Chapter 119, and that court reversed, 

concluding that although ODH had reasonably determined that Capital Care lacked 

a written transfer agreement with a “local” hospital, enacting R.C. 3702.303, 

3702.304, and 3727.60(B) in the biennial budget bill violated the Single Subject 

Clause of Article II, Section 15(D) of the Ohio Constitution, and these statutes 

amounted to an unconstitutional delegation of licensing authority to private entities, 

imposing an undue burden on women seeking an abortion. 

{¶ 20} The Sixth District Court of Appeals affirmed the trial court, holding 

that in accord with Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, 136 S.Ct. 

2292, 195 L.Ed.2d 665 (2016), the statutory mandate for a written transfer 

agreement and the statutory prohibition against public hospitals entering into 

written transfer agreements with abortion clinics imposed an undue burden on 

obtaining an abortion, because the “virtually nonexistent health benefits” of 

requiring a transfer agreement did not outweigh the “substantial obstacles in the 

path of a woman seeking an abortion.” 2016-Ohio-5168, 58 N.E.3d 1207, ¶ 33. It 

further concluded that R.C. 3702.304 delegated licensing authority to private 

parties because it only permitted a variance from the written transfer agreement 

requirement if the facility obtained an agreement with a physician who had 

admitting privileges at a local, private hospital. And lastly, it concluded that R.C. 

3702.303, 3702.304, and 3727.60 violate the Single Subject Clause because there 

is no common nexus with the budget-related items in H.B. 59. 

Arguments before the Ohio Supreme Court 

{¶ 21} On appeal to this court, ODH urges that the court need not address 

the constitutional issues presented in this case, because the transfer agreement with 
January Term, 2018 

9

the University of Michigan Health Center in Ann Arbor does not comply with Ohio 

Adm.Code 3701-83-19(E), and therefore, the order revoking Capital Care’s license 

is supported by reliable, probative, and substantial evidence and is in accordance 

with the law. It also contends: (1) the provisions related to ambulatory surgical 

facilities enacted in H.B. 59 do not violate the Single Subject Clause, (2) Capital 

Care disclaimed the argument that the written transfer agreement statute imposes 

an undue burden on abortion rights, and in any case, the statute is rationally related 

to protecting the health of women having abortions, and (3) the statute does not 

unconstitutionally delegate licensing authority to third parties because ODH has the 

final decision with respect to granting a variance. 

{¶ 22} Capital Care argues that ODH did not rely on Ohio Adm.Code 3701-

83-19(E) but rather concluded that the written transfer agreement did not comply 

with R.C. 3702.303(A). It asserts that the statute and the rule impose different 

standards but only the statute required the agreement to be with a local hospital, 

and it maintains that its written transfer agreement complies with the rule by 

providing for emergency transfers to a local hospital using 9-1-1 and nonemergency transfers to Ann Arbor via helicopter or ground transport. Capital Care 

further contends that had it known that its agreement needed to but did not comply 

with the rule, it would have sought a waiver or a variance, and that principles of 

procedural due process preclude ODH from now using the rule to revoke the license 

when it never provided notice that the Michigan transfer agreement did not comply 

with that rule. It also contends that (1) enacting regulations on ambulatory surgical 

facilities disconnected from appropriations in the biennial budget bill violates the 

Single Subject Clause, (2) the court of appeals correctly concluded that R.C. 

3702.303, 3702.304, and 3727.60 impose an undue burden on abortion rights after 

the Supreme Court’s intervening decision in Hellerstedt rendered ODH’s 

revocation of its license contrary to law, and (3) those statutes unconstitutionally 

delegate the state’s licensing authority to private parties by giving privately owned 
SUPREME COURT OF OHIO

10 

hospitals and physicians the arbitrary power to veto the licensing and operation of 

abortion providers by refusing to contract with them. 

{¶ 23} The legal question presented here is whether the order of ODH 

revoking Capital Care’s health care facility license is supported by reliable, 

probative, and substantial evidence and is in accordance with law. 

Law and Analysis 

{¶ 24} The standard of review for an appeal to common pleas court from an 

administrative order revoking or denying renewal of a license is contained in R.C. 

119.12(M), which specifies that the court may affirm the order if it is “supported 

by reliable, probative, and substantial evidence and is in accordance with law.” 

{¶ 25} In University of Cincinnati v. Conrad, 63 Ohio St.2d 108, 407 

N.E.2d 1265 (1980), we indicated that “whether an agency order is supported by 

reliable, probative and substantial evidence essentially is a question of the absence 

or presence of the requisite quantum of evidence.” Id. at 111. We then explained 

that an administrative appeal to the common pleas court does not provide a trial de 

novo, id. at 110, but rather “the Court of Common Pleas must give due deference 

to the administrative resolution of evidentiary conflicts,” id. at 111. And where the 

agency’s decision is supported by sufficient evidence and the law, the common 

pleas court lacks authority to review the agency’s exercise of discretion, even if its 

decision is “admittedly harsh.” Henry’s Cafe, Inc. v. Bd. of Liquor Control, 170 

Ohio St. 233, 236-237, 163 N.E.2d 678 (1959). 

{¶ 26} Ohio Adm.Code 3701-83-05.1(C)(2) permits ODH to “[r]evoke, 

suspend, or refuse to renew” a health care facility license if it determines that the 

facility “is not complying” with any provision of Ohio Adm.Code Chapter 3701-

83, which includes the requirement that an ambulatory surgical facility have “a 

written transfer agreement with a hospital for transfer of patients in the event of 

medical complications, emergency situations, and for other needs as they arise,” 

Ohio Adm.Code 3701-83-19(E). 
January Term, 2018 

11 

{¶ 27} Both before and after the enactment of R.C. 3702.303(A), the 

director of ODH interpreted Ohio Adm.Code 3701-83-19(E) to require ambulatory 

surgical facilities to have a written transfer agreement with a hospital within a 30-

minute transport from the facility. Dr. Wymyslo testified that 30 minutes is the 

reasonable and customary time for transporting a patient to the hospital in the event 

of an emergency or urgent complication and that anything more than 30 minutes 

threatens patient safety and quality of care. 

{¶ 28} The evidence adduced at the administrative hearing supports the 

director’s finding that the agreement with the Ann Arbor hospital did not comport 

with the administrative rule’s requirement of a written transfer agreement “for 

transfer of patients in the event of medical complications, emergency situations, 

and for other needs as they arise.” (Emphasis added.) Ohio Adm.Code 3701-83-

19(E). Because the rule provides for the transfer of patients in emergency 

situations, it anticipates that the patient will be quickly transported to a nearby 

hospital for emergency treatment rather than taken to one further away over a longer 

period of time. The testimony established that the Ann Arbor agreement would not 

have allowed for the effective transfer and treatment of a patient in an emergency 

situation. Hubbard admitted that Capital Care lacked a written transfer agreement 

with any hospital between August 1, 2013, and January 20, 2014. She also testified 

that the University of Michigan Health System in Ann Arbor is 52 miles from her 

facility in Toledo, and although she suggested that a helicopter could be used to 

transfer patients there, she admitted that she had no contract with an air-ambulance 

provider to ensure that one would be available when needed. Even if one were 

available, she admitted it could take an hour for it to reach her facility before flying 

another 15 to 20 minutes to Ann Arbor. In short, the evidence plainly established 

that the Ann Arbor agreement would not allow for the transfer of patients “in the 

event of medical complications, emergency situations, and for other needs as they 

arise.” ODH’s determination that Capital Care did not comply with Ohio 
SUPREME COURT OF OHIO

12 

Adm.Code 3701-83-19(E) was supported by reliable, probative, and substantial 

evidence. 

{¶ 29} Capital Care’s argument that deciding this case by applying the 

administrative rule violates due process is without merit. Importantly, Capital Care 

has maintained throughout these proceedings that its agreement with the University 

of Michigan Health System complies with the rule, and it did not seek a variance 

or a waiver of the rule’s written transfer agreement requirement even during the 

extended period in which it operated without any written transfer agreement. Thus, 

its claim that it has now been denied due process by being deprived of the 

opportunity to seek a variance or a waiver is not well taken, because it never 

believed it needed one in the first instance, did not pursue a variance or waiver, and 

thus has not been denied that opportunity. In addition, it has never questioned the 

applicability or constitutionality of Ohio Adm.Code 3701-83-19(E), and in 

Women’s Med. Professional Corp. v. Baird, 438 F.3d 595 (6th Cir.2006), the Sixth 

Circuit Court of Appeals held that applying the rule’s written transfer agreement 

requirement to a Dayton abortion clinic did not impose an undue burden on abortion 

rights, id. at 609, or constitute an unconstitutional delegation of licensing authority 

to a third party, id. at 610. 

{¶ 30} Accordingly, ODH’s finding that Capital Care is not complying with 

Ohio Adm.Code 3701-83-19(E) is supported by reliable, probative, and substantial 

evidence and is in accordance with law. Capital Care operated without a written 

transfer agreement for five months and currently has no such agreement with a 

hospital that allows for the transfer of patients in the event of emergency situations. 

These violations permitted ODH to revoke Capital Care’s health care facility 

license pursuant to rule. 

{¶ 31} And contrary to the approach of the court of appeals reaching the 

constitutionality of R.C. 3702.303, 3702.304, and 3727.60, our precedent directs 

that “this court will not reach constitutional issues unless absolutely necessary.” 
January Term, 2018 

13 

State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 9; In re 

Miller, 63 Ohio St.3d 99, 110, 585 N.E.2d 396 (1992). And our long-standing 

practice disfavors issuing advisory opinions. Dohme v. Eurand Am., Inc., 130 Ohio 

St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, ¶ 27; Egan v. Natl. Distillers & Chem. 

Corp., 25 Ohio St.3d 176, 495 N.E.2d 904 (1986), syllabus. As Chief Justice 

Roberts has stated, “[I]f it is not necessary to decide more, it is necessary not to 

decide more.” PDK Laboratories, Inc. v. United States Drug Enforcement Admin., 

362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring 

in judgment). We thus decline to address the constitutional issues in this case, 

because revocation of Capital Care’s license is supported by reliable, probative, and 

substantial evidence and is in accordance with law. 

Conclusion 

{¶ 32} For more than two decades, Ohio Adm.Code 3701-83-19(E) has 

required ambulatory surgical facilities in Ohio to have written transfer agreements 

with hospitals in order to facilitate treatment in the event of medical complications, 

emergency situations, and for other needs as they arise. 

{¶ 33} The record here demonstrates that Capital Care violated Ohio 

Adm.Code 3701-83-19(E) by operating without any written transfer agreement 

between August 1, 2013, and January 20, 2014, and without a written transfer 

agreement that allows for the transfer of patients in the event of emergency 

situations after January 20, 2014. Thus, this appeal is a license revocation case 

based on the failure to comply with an administrative rule, and the order of ODH 

revoking and refusing to renew Capital Care’s health care facility license pursuant 

to Ohio Adm.Code 3701-83-05.1(C)(2) and 3701-83-19(E) is supported by reliable, 

probative, and substantial evidence and is in accordance with law. 

{¶ 34} Instead of reviewing the basis of the revocation, the appellate court 

jumped to constitutional questions, concluding that R.C. 3702.303, 3702.304, and 

3727.60 violate the Single Subject Clause and delegate licensing authority to third 
SUPREME COURT OF OHIO

14 

parties—and without the benefit of briefing or argument, it also held that these 

statutes impose an undue burden on abortion rights. However, because ODH had 

authority to revoke Capital Care’s license based on the failure to comply with the 

administrative rule requiring a written transfer agreement with a nearby hospital, it 

is not necessary to reach those constitutional issues. 

{¶ 35} Accordingly, we reverse the judgment of the court of appeals and 

reinstate the order of the Ohio Department of Health revoking and refusing to renew 

the license of Capital Care Network of Toledo. 

Judgment reversed. 

KENNEDY, FISCHER, and DEWINE, JJ., concur. 

FRENCH, J., concurs, with an opinion joined by KENNEDY and DEWINE, JJ. 

O’CONNOR, C.J., dissents, with an opinion joined by O’NEILL, J. 

_________________ 

FRENCH, J., concurring. 

{¶ 36} I agree with the majority that appellant, Ohio Department of Health 

(“ODH”), lawfully revoked the operating license of appellee, Capital Care Network 

of Toledo (“Capital Care”), because Capital Care did not have a transfer agreement 

with a hospital as required by Ohio Adm.Code 3701-83-19(E). As stated by the 

majority, we need not address the constitutionality of R.C. 3702.303, 3702.304, and 

3727.60 because the administrative rule provided an alternative and independent 

basis for ODH to revoke Capital Care’s license. 

{¶ 37} I write separately, however, to address the dissent’s contention that 

the statutes violate the one-subject rule of the Ohio Constitution. The dissent’s onesubject analysis illustrates why it is time for this court to reexamine our one-subjectrule jurisprudence and return to early understandings of the rule. 

{¶ 38} The one-subject rule was adopted in 1851 among other provisions in 

former Article II, Section 16, of the Ohio Constitution, which governed legislative 

proceedings. 
January Term, 2018 

15 

Every bill shall be fully and distinctly read, on three different days, 

unless, in case of urgency, three-fourths of the house, in which it 

shall be pending, shall dispense with this rule. No bill shall contain 

more than one subject, which shall be clearly expressed in its title; 

and no law shall be revived, or amended, unless the new act contain 

the entire act revived, or the section or sections amended; and the 

section, or sections, so amended, shall be repealed. 

Former Ohio Constitution, Article II, Section 16 (effective Sept. 1, 1851, to Nov. 

3, 1903). 

{¶ 39} Five years later, this court decided Pim v. Nicholson, 6 Ohio St. 176 

(1856), its first opinion interpreting the one-subject rule. Judge Joseph R. Swan, 

who had served as a delegate to the 1850-1851 Constitutional Convention, wrote 

the court’s unanimous opinion. See Kulewicz, The History of the One-Subject Rule 

of the Ohio Constitution, 45 Clev.St.L.Rev. 591, 594 (1997). The court ruled that 

the one-subject provision was “intended to operate upon bills in their progress 

through the general assembly” and “must be held to be directory only.” Pim at 180. 

“It relates to bills and not to acts.” Id. The court concluded that it was “unable to 

perceive” any evidence that the rule “was intended to effect any practical object for 

the benefit of the people in the examination, construction, or operation of acts 

passed and published.” Id. at 179. 

{¶ 40} The Pim decision generated vigorous discussion at the 1873-1874 

constitutional convention. Several delegates proposed amendments to the rule in 

an attempt to abrogate the court’s holding that the one-subject rule is directory and 

not mandatory. Because the court had held that the rule acted upon bills and not 

laws, one delegate sought to change the word “bill” to “law” in order to give the 

rule binding effect beyond the legislative process. See II Official Report of the 
SUPREME COURT OF OHIO

16 

Proceedings and Debates of the Third Constitutional Convention of Ohio, 1873-

1874, 280. After some debate as to the efficacy of the amendment, the same 

delegate then proposed the following substitution: 

No act shall embrace more than one subject, which shall be clearly 

expressed in its title, and if any subject shall be embraced in the act 

which shall not be expressly embraced in its title, such act shall be 

void as to so much thereof as shall not be so expressed. 

Id. at 284. Various delegates, however, voiced their concern that the proposed 

amendments would lead to confusion and constant litigation as to whether an act 

contains more than one subject. Id. at 284-285. Ultimately, the delegates at the 

1873-1874 convention did not make any changes to the one-subject rule. 

{¶ 41} The language of the one-subject provision has remained intact since 

its adoption in 1851 except that the rule moved from Article II, Section 16, to 

Article II, Section 15(D) of the Constitution in 1973. Am.H.J.R. No. 5, 135 Ohio 

Laws, Part 1, 2037, 2040. And within a short time of its enactment, both the judicial 

and legislative branches clarified their understanding of the one-subject rule: that it 

imposed a limitation on bills, not acts, and that the legislature, not the judiciary, 

was to enforce it. 

{¶ 42} This court adhered to Pim’s directory analysis for more than 100 

years. In doing so, it acknowledged that a “ ‘manifestly gross and fraudulent 

violation of these rules might authorize the court to pronounce a law 

unconstitutional.’ ” (Emphasis deleted.) State ex rel. Dix v. Celeste, 11 Ohio St.3d 

141, 144-145, 464 N.E.2d 153 (1984), quoting Pim, 6 Ohio St. at 180. But the court 

also acknowledged the need for, and the value of, great deference to legislative 

decisions about its internal proceedings. 
January Term, 2018 

17 

{¶ 43} In Dix, Justice William B. Brown eloquently explained the history 

of the rule and the delicate balance struck by the court in Pim. “[B]y holding that 

the one-subject rule is directory and not mandatory, judicial interference with 

legislative action is reduced.” Id. at 144. And by emphasizing the safeguard against 

manifestly gross and fraudulent violations, a proper balance is maintained. 

{¶ 44} This balance, the court said, “recognizes the necessity of giving the 

General Assembly great latitude in enacting comprehensive legislation by not 

construing the one-subject provision so as to unnecessarily restrict the scope and 

operation of laws, or to multiply their number excessively, or to prevent legislation 

from embracing in one act all matters properly connected with one general subject.” 

Id. at 145. It recognizes that the General Assembly may have “rational and practical 

reasons” for combining topics on certain subjects. Id. Rather than for the purpose 

of logrolling, combining provisions may be “for the purposes of bringing greater 

order and cohesion to the law or of coordinating an improvement of the law’s 

substance.” Id. 

{¶ 45} Applying these principles and the need for balance, the Dix court 

examined the statute at issue only for “such a blatant violation of the one-subject 

rule so as to render it unconstitutional.” Id. The court found no violation in a bill 

that combined an appropriation to fund programs that were transferred to a 

department of the state with the abolishment of a commission that had previously 

had responsibility for those programs. 

{¶ 46} Over the next two decades, however, the court began to turn slowly 

away from these limiting principles. See, e.g., State ex rel. Hinkle v. Franklin Cty. 

Bd. of Elections, 62 Ohio St.3d 145, 580 N.E.2d 767 (1991); State ex rel. Ohio 

AFL-CIO v. Voinovich, 69 Ohio St.3d 225, 631 N.E.2d 582 (1994); SimmonsHarris v. Goff, 86 Ohio St.3d 1, 711 N.E.2d 203 (1999); State ex rel. Ohio Academy 

of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062 (1999). And by 
SUPREME COURT OF OHIO

18 

2004, the court was completely loose from their moorings. See In re Nowak, 104 

Ohio St.3d 466, 2004-Ohio-6777, 820 N.E.2d 335. 

{¶ 47} In Nowak, this court announced that it would no longer view the onesubject rule as directory because it found that a provision cannot be both directory 

and capable of invalidating an enactment: “[t]he proposition that the one-subject 

rule is both directory and potentially capable of being applied by the court to 

invalidate a law is essentially an oxymoron.” Id. at ¶ 38. Based on this incongruity, 

the court said that “[s]ince the one-subject provision is capable of invalidating an 

enactment, it cannot be considered merely directory in nature.” Id. at ¶ 54. And 

with those words, the court jettisoned early legislative and judicial understandings 

of the rule. 

{¶ 48} My concern is not so much about whether we call the one-subject 

rule directory or mandatory. It is, rather, about judicial overreach. In Nowak, as in 

so many other cases, this court lost sight of the fact that the constitutional provision 

had long been understood to recognize that the General Assembly may have 

legitimate reasons for combining topics into a substantial bill that pertains to one 

broad subject—a subject that might appear disjointed from a judicial perspective 

but that would serve legislative goals of cohesion, order, or improvement. 

{¶ 49} Because it is unnecessary to reach the question whether the statutes 

at issue here violate the one-subject rule, this is not the case to reset our course. It 

is sufficient to say here that the substance of the one-subject rule has remained 

intact since its adoption in 1851. And at the time of the rule’s adoption, the framers 

of the Ohio Constitution understood the one-subject rule as a matter of legislative 

procedure enforced by the General Assembly, not by the judiciary. This court 

should return to that understanding. 

Kennedy and DeWine, JJ., concur in the foregoing opinion. 

_________________ 

 
January Term, 2018 

19 

O’CONNOR, C.J., dissenting. 

{¶ 50} The majority resolves this case by finding that appellant’s, Ohio 

Department of Health’s (“ODH’s”), revocation of appellee’s, Capital Care Network 

of Toledo’s, Ambulatory Surgical Facility (“ASF”) license pursuant to Ohio 

Adm.Code 3701-83-05.1(C)(2) and 3701-83-19(E) is supported by reliable, 

probative, and substantial evidence and is in accordance with law. But I would find 

that Capital Care’s written transfer agreement complied with the regulations. 

{¶ 51} Because I would find that the agreement complied with the 

regulation, I find it necessary to determine whether the written-transfer-agreement 

provisions, R.C. 3702.303, 3702.304, and 3727.60, are constitutional. The majority 

erroneously fails to address the constitutionality of these provisions. I would hold 

that the General Assembly unconstitutionally enacted the statutory changes in 

violation of the one-subject rule, the statutes unconstitutionally place an undue 

burden on a woman’s right to obtain a previability abortion, and the statutes 

unconstitutionally delegate licensure power to private parties. All three of these 

separate bases were properly reviewed by the lower courts and are clearly at issue 

before this court today. Therefore, I dissent. 

I. The Department of Health Revoked Capital Care’s License Based on a 

Statutory Violation 

{¶ 52} The majority states that “the legal issue presented to our court * * * 

concerns whether the order of the director of the Department of Health for the state 

of Ohio revoking the license of Capital Care Network of Toledo for failure to 

comply with Ohio Adm.Code 3701-83-19(E) is supported by reliable, probative, 

and substantial evidence and is in accordance with law.” Majority opinion at ¶ 2. 

But ODH stated that its revocation order was “in accordance with R.C. 3702.32, 

R.C. 3702.303(A), R.C. Chapter 119, and OAC 3701-83-19(E).” Therefore, the 

majority is mistaken in resolving this case based only on the administrative 

regulation. 
SUPREME COURT OF OHIO

20 

{¶ 53} The administrative code requires an ASF to have a transfer 

agreement with a hospital. Ohio Adm.Code 3701-83-19(E). The statute, R.C. 

3702.303, effective September 29, 2013, requires an ASF to have a transfer 

agreement with a local hospital. ODH’s first letter proposing license revocation, 

dated August 2, 2013, cited the administrative code. ODH claimed Capital Care 

was in violation of the administrative code for failing to have a transfer agreement 

with a hospital. But ODH did not schedule a hearing on the proposed revocation 

until February 18, 2014. During preparations for the hearing, Capital Care obtained 

a written transfer agreement with the University of Michigan, in January 2014. 

{¶ 54} ODH’s second letter proposing license revocation, dated February 

18, 2014, cited violations of both the rule and the statute and noted that “ODH did 

not receive a copy of a written transfer agreement or a plan from Capital Care 

Network of Toledo setting forth how it planned to comply with O.A.C. 3701-83-

19(E) until about January 16, 2014.” The letter specifically stated that “R.C. 

3702.303(A) requires the written transfer agreement to be with a local hospital” and 

identified the agreement with the University of Michigan as violating the local 

requirement. 

{¶ 55} It is disingenuous for the majority to conclude that ODH revoked 

Capital Care’s license in June 2014 solely based on a violation of the Ohio 

Administrative Code. ODH’s second letter proposing license revocation 

specifically identified the University of Michigan agreement as violating the 

statute, not the regulation. Even at the hearing, ODH’s director did not state that 

the written transfer agreement with the University of Michigan violated the rule, 

conjecturing merely, “I think there would have still been a question about it” absent 

the “local” requirement. I decline to accept the state’s post hoc rationalization that 

the license revocation was based on the rule when the director still had a question 

whether that basis would have been sufficient. 
January Term, 2018 

21 

{¶ 56} If Capital Care violated some other part of the regulation, R.C. 

119.07 required ODH to give notice of the violation to Capital Care. ODH never 

provided that notice. Instead, ODH informed Capital Care that its license was being 

considered for revocation for failure to maintain a written transfer agreement with 

a local hospital, in violation of the statute, not the rule. 

{¶ 57} By the time ODH issued its order revoking Capital Care’s license in 

June 2014, the clinic had obtained a written transfer agreement that ODH’s director 

rejected for failure to conform to the statute, not for failure to comply with the rule. 

Thus the majority must consider the validity of the statutory scheme. 

II. R.C. 3702.303, 3702.304, and 3727.60 are Unconstitutional 

{¶ 58} Turning to the merits, I would find that R.C. 3702.303, 3702.304, 

and 3727.60, the written-transfer provisions for ASFs enacted as part of 2013 

Am.Sub.H.B. No. 59 (“H.B. 59”), the fiscal-year 2014-2015 budget, are invalid for 

three separate reasons: (1) the provisions violate the one-subject rule, (2) the 

provisions create an undue burden on a woman’s right to a previability abortion, 

and (3) R.C. 3702.303 and 3702.304 unconstitutionally delegate licensing power to 

private parties. 

A. The General Assembly Enacted R.C. 3702.303, 3702.304, and 3727.60 in 

Violation of the One-Subject Rule 

{¶ 59} R.C. 3702.303, 3702.304, and 3727.60 were passed as part of the 

biennial budget for fiscal year 2014-2015. Because H.B. 59 is a budget bill, the 

more than 3500-page act mainly addresses funding and appropriations for state 

functions. The three sections at issue, concerning written transfer agreements, 

cover just three pages of the bill. 

{¶ 60} R.C. 3702.303 creates a requirement that ASFs have a written 

transfer agreement with a local hospital. R.C. 3702.304 describes how an ASF can 

obtain a variance from the written-transfer-agreement requirement in R.C. 

3702.303. R.C. 3727.60 prohibits public hospitals from entering into written 
SUPREME COURT OF OHIO

22 

transfer agreements with ASFs that provide nontherapeutic abortions. It also 

prohibits physicians with staff or professional privileges at public hospitals from 

using those privileges to help ASFs that provide nontherapeutic abortions obtain a 

variance from the written-transfer-agreement requirement. 

1. The one-subject challenge is properly before the court 

{¶ 61} The state argues that this court cannot even consider the one-subject 

claim for two of the three statutes because Capital Care challenged only R.C. 

3702.303, not all three provisions, on one-subject grounds and ODH’s order was 

based only on R.C. 3702.303. I disagree. R.C. 119.12 governs the appeal of an 

administrative action, and R.C. 119.12(M) permits the court to “reverse, vacate, or 

modify the order or make such other ruling as is supported by reliable, probative, 

and substantial evidence and is in accordance with law.” Although ODH did not 

consider R.C. 3702.304 and R.C. 3727.60, the court has authority to “make such 

other ruling as is supported by * * * evidence and is in accordance with law.” 

{¶ 62} And contrary to the state’s claim, Capital Care did not waive a onesubject challenge related to R.C. 3702.304 and R.C. 3727.60. It was unnecessary 

for Capital Care to challenge the statutes’ constitutionality at the administrative 

hearing, because it was outside the purview of the hearing examiner to determine 

the constitutionality of statutes. See, e.g., S.S. Kresge Co. v. Bowers, 170 Ohio St. 

405, 166 N.E.2d 139 (1960), paragraph one of the syllabus. Because Capital Care 

makes a facial constitutional challenge, there was no need for the litigants to 

develop an evidentiary record, so the state was not prejudiced. See Reading v. Pub. 

Util. Comm., 109 Ohio St.3d 193, 2006-Ohio-2181, 846 N.E.2d 840, ¶ 16. 

{¶ 63} Although Capital Care was not explicit about the scope of its onesubject challenge on appeal to the trial court, its arguments put the state on notice 

that all three statutes were at issue and gave that court enough evidence to make a 

ruling. Capital Care argued in its brief to the trial court that “the written transfer 

agreement provisions are wholly unrelated to H.B. 59’s primary subject,” “the 
January Term, 2018 

23 

written transfer agreement provisions were not passed on their own merits, but 

rather were added as riders,” and “Ohio legislators buried controversial antiabortion provisions in the pages of a budget bill.” (Emphasis added.) Capital Care 

even specifically cited R.C. 3727.60, describing “provisions [that] were later 

amended to target abortion providers in the final hearing of the Senate Committee.” 

(Emphasis added.) Multiple references to “provisions” and “riders” demonstrate 

that Capital Care was referring to more than just one statute. R.C. 3702.304, which 

permits the director of health to grant a variance from a written-transfer-agreement 

requirement under certain circumstances, and R.C. 3727.60, which prohibits 

hospitals from entering into “a written transfer agreement with an ambulatory 

surgical facility in which nontherapeutic abortions are performed,” objectively are 

“written transfer agreement provisions” along with R.C. 3702.303. 

{¶ 64} Additionally, the arguments made by both Capital Care and the state 

before the common pleas court apply to all three laws. Capital Care in fact 

challenged the entire bill, claiming that “H.B. 59 and the written transfer agreement 

provision are void and unenforceable.” Specifically, Capital Care argued that the 

provisions “do not authorize the expenditure of state dollars or stipulate the amount, 

manner, or purpose of an expenditure” and “are inherently controversial and of 

significant constitutional import.” For its part, the state, in its brief arguing against 

a one-subject violation, did not limit its argument to R.C. 3702.303. Instead, it 

claimed, “The Written Transfer Agreement Language of HB 59 * * * Does Not 

Violate the Single-Subject Rule,” and it argued generally that “[t]he written transfer 

agreement provisions * * * fall within the unity of the purpose of the bill.” In fact, 

the state did not argue that Capital Care failed to challenge R.C. 3702.303 and 

3727.60 until its brief in this court, even after the trial court found the “Current 

Scheme [R.C. 3702.303, 3702.304, and 3727.60] for licensing abortion-center 

ASFs * * * violates the single-subject rule.” Despite this notice, the state’s brief to 

the Sixth District Court of Appeals was devoid of any argument that the scope of 
SUPREME COURT OF OHIO

24 

Capital Care’s one-subject challenge should be limited. For these reasons, I would 

find that Capital Care properly challenged the validity of R.C. 3702.303, 3702.304, 

and 3727.60 under the one-subject rule, and the challenge was properly considered 

by the lower courts. 

2. The written-transfer-agreement provisions of H.B. 59 violate the onesubject rule 

{¶ 65} The concurring opinion’s position that this court has no power to 

enforce the one-subject rule is inappropriate. One restraint the people have placed 

on state power in the Ohio Constitution prescribes that “[n]o bill shall contain more 

than one subject, which shall be clearly expressed in its title.” Article II, Section 

15(D), Ohio Constitution. The concurring opinion argues that “it is time for this 

court to reexamine our one-subject-rule jurisprudence and return to early 

understandings of the rule.” Concurring opinion at ¶ 37. Therefore, before 

considering the merits of the one-subject challenge, I find it necessary to consider 

the origins of the rule and its development over time. 

{¶ 66} State constitutions “provide a blueprint for government, allocating 

authority among branches of power,” and “establish charters of government that 

simultaneously empower and constrain.” Sutton, What Does—and Does Not—Ail 

State Constitutional Law, 59 U.Kan.L.Rev. 687 (2011). Indeed, state constitutions 

were the first to place limits on state power. Brennan, State Constitutions and the 

Protection of Individual Rights, 90 Harv.L.Rev. 489, 501 (1977) (“Prior to the 

adoption of the federal Constitution, each of the rights eventually recognized in the 

federal Bill of Rights had previously been protected in one or more state 

constitutions”). This early emphasis on the rights of the populace is enshrined in 

the Tenth Amendment to the United States Constitution, which decrees that 

“powers not delegated to the United States by the Constitution, nor prohibited by it 

to the States, are reserved to the States respectively, or to the people.” All power 

then that is not explicitly retained by the federal or state governments resides with 
January Term, 2018 

25 

the people. When the people use their power to place specific restraints on 

government, this court has a responsibility to honor and enforce that decision. 

Indeed, Judge Jeffrey Sutton, an Ohio constitutional-law scholar, recognized that 

state constitutions often contain provisions, including single-subject clauses, not 

found anywhere in the federal constitution, and state courts bear responsibility for 

vindicating these rights. Sutton, Why Teach—and Why Study—State Constitutional 

Law, 34 Okla.City U.L.Rev. 165, 176 (2009). 

{¶ 67} The people first imposed the one-subject rule in the 1851 Ohio 

Constitution. “The particular grievances leading to the Ohio Constitutional 

Convention of 1850-51 included the legislature’s * * * control over the judiciary 

and other state officers.” Steinglass & Scarselli, The Ohio State Constitution, 4 

(2011). We have recognized that the rule is a result of “the drafters’ desire to place 

checks on the legislative branch’s ability to exploit its position as the 

overwhelmingly pre-eminent branch of state government prior to 1851.” State ex 

rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 495, 715 

N.E.2d 1062 (1999). Indeed, the entire 1851 Constitution reflects a “general 

distrust of legislative power.” Steinglass & Scarselli at 35. 

{¶ 68} This court has held that “[t]he universally recognized purpose of 

[one-subject] provisions is to prevent so-called ‘logrolling.’ ” State ex rel. Ohio 

Civ. Serv. Emps. Assn., AFSCME, Local 11, AFL-CIO v. State Emp. Relations Bd., 

104 Ohio St.3d 122, 2004-Ohio-6363, 818 N.E.2d 688, ¶ 26 (“OCSEA 2004”).1 

 

1

 To the extent that there was limited debate about the one-subject rule in Ohio, the concern about 

logrolling was evident in the record of Indiana’s constitutional convention which was being held 

almost contemporaneously. Evans & Bannister, The Meaning and Purpose of State Constitutional 

Single Subject Rules: A Survey of States and the Indiana Example, 49 Val.U.L.Rev. 87, 103 (2014). 

There, a delegate moved to add the following language to the constitution: “Every law shall embrace 

but one object, which shall be expressed in the title.” Id. at 104, citing 2 Report of the Debates and 

Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 1085 

(1850). The delegate explained: 

The object of this amendment is to obviate a difficulty that frequently occurs in 

the Legislature. When a bill is presented and its friends are not numerous enough 
SUPREME COURT OF OHIO

26 

Logrolling is “the practice by which several matters are consolidated in a single bill 

for the purpose of obtaining passage for proposals which would never achieve a 

majority if voted on separately.” Hoover v. Franklin Cty. Bd. of Commrs., 19 Ohio 

St.3d 1, 6, 482 N.E.2d 575 (1985). The rule prevents “ ‘riders’ from being attached 

to bills that are ‘ * * * so certain of adoption that the rider will secure adoption not 

on its own merits, but on the measure to which it is attached.’ ” State ex rel. Dix v. 

Celeste, 11 Ohio St.3d 141, 143, 464 N.E.2d 153 (1984), quoting Ruud, “No Law 

Shall Embrace More Than One Subject,” 42 Minn.L.Rev. 389, 391 (1958). 

{¶ 69} The avoidance of logrolling promotes limitations on legislative 

power in at least two ways. First, it allows legislators to know exactly what they 

are voting on and prevents excessive measures, and accompanying government 

interference, from passage as part of omnibus bills. Second, it allows the public to 

know exactly how their legislators voted on any given measure and to reward or 

punish them at the ballot box on the basis of those specific votes. Without the onesubject rule, the public would have more difficulty isolating all the measures in a 

given piece of legislation, making it more difficult to hold their representatives 

responsible for choices with which they disagree. The one-subject rule also 

 

to pass it, and they enter into a coalition with gentlemen who desire the passage 

of some other measure to mutually assist each other in the passage of both 

combined under one head; and it is intended to prevent another difficulty, which 

often arises when only a part of the character of the bill is expressed in the title. 

Id. The next delegate to speak offered: 

We have, sir, a precedent for such a provision. I have in my hand the Constitution of 

California which contains this provision, ‘Every law shall contain but one subject, and that 

shall be expressed in the title.’ I suppose the object of it is to prevent the practice of logrolling, as it has been termed by the Legislature. I am satisfied that the correct course is to 

adopt the provision. Almost every State Convention that has been called * * * has inserted 

a provision of this kind. 

(Emphasis added and ellipses sic.) Id. 
January Term, 2018 

27 

prevents legislators from evading responsibility for their votes by claiming that they 

did not agree with certain measures but had to vote yes in order to secure passage 

of other provisions they deemed necessary. 

{¶ 70} Despite the clear policy behind the rule, and its use of “shall” in 

prohibiting more than one subject in a bill, this court held in 1856 that the onesubject rule was directory. Pim v. Nicholson, 6 Ohio St. 176 (1856). As the 

concurring opinion explains, the holding in Pim recognized the court’s reluctance 

to interfere with the legislature. I would note that although the concurring opinion 

attempts to add weight to this court’s decision in Pim by calling attention to the fact 

that Justice Joseph R. Swan, who served as a delegate to the 1850-1851 

Constitutional Convention, wrote the opinion, the records of the convention reflect 

that on the day the convention agreed to add the one-subject rule to the constitution, 

a roll call was ordered and Swan was “found absent.” II Report of the Debates and 

Proceedings of the Convention for the Revision of the Constitution of the State of 

Ohio 151 (1851). We therefore should reject the concurring opinion’s invitation to 

imbue Pim with more authority than is due to any other decision of this court. 

{¶ 71} The court declared in Pim that “[t]he subject of the bill is required to 

be clearly expressed in the title, for the purpose of advising members of its subject, 

when voting in cases in which the reading has been dispensed with by a two-thirds 

vote.” Pim at 179. Then the court considered the role of the rule in preventing 

logrolling: “The provision that a bill shall contain but one subject, was to prevent 

combinations, by which various and distinct matters of legislation should gain a 

support which they could not if presented separately.” Id. Although Pim declared 

the rule to be directory and found that “in general the only safeguard against the 

violation of these rules of the houses, is their regard for, and their oath to support, 

the constitution of the state,” that declaration was not without caveat. Id. at 180. 

Even Pim recognized that “a manifestly gross and fraudulent violation of these rules 
SUPREME COURT OF OHIO

28 

might authorize the court to pronounce a law unconstitutional.” Id. The court 

“presumed that no such case will ever occur.” Id. 

{¶ 72} That presumption may have been appropriate for the time. The act 

in that case contained just five sections, filled less than two pages, and concerned 

the powers and procedures of courts. 53 Ohio Laws 178-179. It is unlikely that the 

court in 1856 could fathom a law, like the one here, that is more than 3,500 pages 

long and contains a title of more than 3,500 words. 

{¶ 73} In addition to failing to consider the contextual differences between 

Pim and later one-subject challenges, in its history lesson, the concurring opinion 

fails to consider a major event in the history of the one-subject rule. In 1969, the 

General Assembly enacted legislation to create the Ohio Constitutional Revision 

Commission. Am.Sub.H.B. No. 240, 133 Ohio Laws, Part II, 1977. See Steinglass, 

Constitutional Revision: Ohio Style, 77 Ohio St.L.J. 281, 336 (2016). The 

commission’s assignment, over ten years, was “to study the constitution, to make 

recommendations of proposed amendments to the General Assembly, and to make 

recommendations to a constitutional convention.” Steinglass, 77 Ohio St.L.J. at 

336-337. 

{¶ 74} Among the revisions considered by the commission was moving or 

eliminating the one-subject rule. Ohio Constitutional Revision Commission, Final 

Report 124 (1977), available at Ohio Legislative Service Commission, 

https://www.lsc.ohio.gov/pages/reference/current/generalreference.aspx?active=id

LegInform (accessed Jan. 23, 2018). “Testimony submitted to the Commission 

challenged the justification of retaining in the Constitution provisions which courts 

have termed ‘directory only.’ ” Id. Nonetheless, the commission recommended 

keeping the one-subject rule and certain other provisions which the court had 

deemed directory, finding “that in some instances they provide a minimum 

guarantee for an orderly and fair legislative process. Their inclusion in the 

Constitution instead of legislative rule is in part, at least, for the protection of a 
January Term, 2018 

29 

temporary minority whose rights may not be suspended by a majority willing to 

disregard traditional procedures.” Id. at 125. The General Assembly adopted this 

recommendation and a related one to separate the single-subject rule from the threereading rule and place each in their own subsection of the Constitution, in 1973. 

Am.H.J.R. No. 5, 135 Ohio Laws, Part I, 2037, 2040. The commission’s 

recommendation, and the General Assembly’s adoption of it, reaffirmed the 

relevance of the one-subject rule and established a basis for the court to reinvigorate 

it to ensure “an orderly and fair legislative process.” 

{¶ 75} Accordingly, for more than 30 years, this court has respected the 

General Assembly’s power to make laws while at the same time refusing to 

“abdicate in its duty to enforce the Ohio Constitution.” Dix, 11 Ohio St.3d at 144, 

464 N.E.2d 153. With that balance in mind, this court has held that “[t]he mere fact 

that a bill embraces more than one topic is not fatal, as long as a common purpose 

or relationship exists between the topics.” Hoover at 6. “In order to find a 

legislative enactment violative of the one-subject rule, a court must determine that 

various topics contained therein lack a common purpose or relationship so that there 

is no discernible practical, rational or legitimate reason for combining the 

provisions in one Act.” Beagle v. Walden, 78 Ohio St.3d 59, 62, 676 N.E.2d 506 

(1997). 

{¶ 76} Appropriations bills are particularly problematic for application of 

the one-subject rule. These bills necessarily “encompass many items, all bound by 

the thread of appropriations.” Simmons-Harris v. Goff, 86 Ohio St.3d 1, 16, 711 

N.E.2d 203 (1999). Yet, despite the difficulty of determining whether a provision 

in an appropriations bill violates the one-subject rule, “[t]he danger of riders is 

particularly evident when a bill as important and likely of passage as an 

appropriations bill is at issue. Id.

{¶ 77} This court has held a school-voucher program created in an 

appropriations bill was invalid due to the one-subject rule because there was blatant 
SUPREME COURT OF OHIO

30 

disunity between the program and the other items in the bill, particularly when the 

state has provided no rational reason for their combination. Id. This court has also 

found invalid an amendment to an appropriations bill that excluded certain public 

employees from the collective-bargaining process because the amendment “was an 

extremely small portion” of the bill, OCSEA 2004, 104 Ohio St.3d 122, 2004-Ohio6363, 818 N.E.2d 688, at ¶ 32. The state “offered little guidance regarding the 

manner in which the amendment * * * affects the state budget, aside from the 

general averment that the amendment ‘is related to the pay schedules applicable to 

[the employees],’ ” id. at ¶ 34, and “the record [was] devoid of any explanation 

whatever as to the manner in which the amendment * * * will clarify or alter the 

appropriation of state funds,” id. 

{¶ 78} On the other hand, this court found that a tax-levying provision in an 

appropriation bill was valid “because the tax fund[ed] government operations 

described elsewhere in the Act.” ComTech Sys., Inc. v. Limbach, 59 Ohio St.3d 96, 

99, 570 N.E.2d 1089 (1991). This court has also found sections in a budget bill 

providing for the privatization of certain state prisons valid because they “provide 

for decreased expenditures by public entities and provide means for revenue 

generation that can fund the operation of other programs and matters described in 

the bill.” State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d 315, 

2016-Ohio-478, 56 N.E.3d 913, ¶ 34 (“OCSEA 2016”). 

{¶ 79} The state argues that the one-subject rule was not violated because 

the three written-transfer provisions fall within the budget bill’s purpose of making 

operating appropriations and setting conditions for efficient and effective 

operations of state government. Specifically, the state claims that R.C. 3727.60 

sets a condition on the use of state-funded resources (public hospitals), thereby 

placing a restriction on state spending that rationally affects the budget. R.C. 

3702.304 satisfies the one-subject rule, according to the state, because it improves 

ODH’s operations by clarifying variance standards. These improvements relate to 
January Term, 2018 

31 

the funding of continued operations of state programs, according to the state’s 

argument, just like the provisions that this court found acceptable in OCSEA 2016. 

Finally, the state admits that R.C. 3702.303 has a less obvious connection to the 

budget but argues because it is closely related to the other two provisions, it does 

not violate the one-subject rule. 

{¶ 80} These arguments fail for several reasons. First, although R.C. 

3727.60 restricts public hospitals from entering into written transfer agreements 

with abortion clinics, the state has offered no evidence that these restrictions will 

reduce or even impact the budget. The Emergency Medical Treatment and Labor 

Act (“EMTALA”) provides that “if any individual * * * comes to the emergency 

department and a request is made on the individual’s behalf for examination or 

treatment for a medical condition, the hospital must provide for an appropriate 

medical screening examination.” 42 U.S.C. 1359dd(a). Accordingly, even though 

R.C. 3727.60 prohibits public hospitals from entering into a written transfer 

agreement with an abortion clinic, a public hospital will still have to provide 

emergency care for an abortion-clinic patient who appears at the hospital. 

{¶ 81} The director of ODH verified the irrelevance of R.C. 3727.60 to 

public-emergency-room operations, testifying that if a patient is experiencing a lifethreatening medical emergency, medical personnel would typically call 9-1-1 

instead of using the written transfer agreement and first responders would take a 

patient in a life-threatening situation to the nearest hospital, notwithstanding the 

existence of a written transfer agreement with another facility. He testified that 

EMTALA requires the hospital to complete a medical assessment of a patient, 

notwithstanding the existence or lack thereof of a written transfer agreement. 

{¶ 82} Thus, beyond the state’s general averment that R.C. 3727.60 

“ensures that no State funds, or operations of public hospitals, will even indirectly 

support abortion-related procedures,” this court has before us no evidence to 
SUPREME COURT OF OHIO

32 

support such a claim. Accordingly, the statute will have no measurable impact on 

the state’s budget. 

{¶ 83} The state’s reliance on OCSEA 2016 is similarly flawed. That case 

concerned prison-privatization provisions inserted into a biennial budget. Although 

this court rejected the one-subject claim based on the general conclusion that the 

provisions “relate to the overall subject of state expenditures and revenues,” 

OCSEA 2016, 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, at ¶ 26, a 

significant factual record in that case demonstrated an actual impact on the budget. 

{¶ 84} Specifically, the provisions allowed a public entity to contract with 

private companies to operate and manage state-owned prison facilities. In order to 

enter into such a contract, the law stated that the company must demonstrate that it 

would save the public entity five percent of the projected cost of the state to operate 

the prison. The law also stated that the company must demonstrate that it would 

not cost the state additional money, by showing it could operate the facility with 

the same inmate capacity and standards required of the public entity (therefore not 

diminishing the cost savings by requiring a publicly operated prison to take on 

additional prisoners or creating liability related to mistreatment) and indemnifying 

the state for certain claims and losses. The budget bill also provided for the sale of 

five Ohio prisons, leading to concrete revenue generation, and it directed where that 

revenue should go. Another provision described what taxes the prison would pay 

following sale to a private company, creating an additional revenue stream. These 

provisions, with their reference to specific revenue sources and descriptions of how 

the revenues were to be used, stand in stark contrast with what we have here—

factually inaccurate averments about hospital resources. 

{¶ 85} The state’s dependence on other case law to support the validity of 

R.C. 3702.304 is likewise misguided. First, the state argues that Dix supports its 

claim that legislation may include a large number of topics when its purpose is to 

bring greater order and cohesion or improvement to the law. However, what Dix 
January Term, 2018 

33 

actually says is that if a large number of topics “are germane to a single subject,” 

they may be joined in one bill “for purposes of bringing greater order and cohesion 

to the law or of coordinating an improvement of the law’s substance.” 11 Ohio 

St.3d at 145, 464 N.E.2d 153. I do not believe this resolves the matter in favor of 

the state. The substance of H.B. 59 is the state’s budget. 

{¶ 86} Certainly, the state has not established here the same nexus that was 

present in Dix. There, the bill at issue abolished a commission, transferred its duties 

to another department, and created three new organizations in that department, and 

the one-subject challenge was to an appropriation that provided for funding of those 

three new organizations. The court found that the appropriation funding these new 

organizations was necessarily part of the same subject as the abolishment of the 

commission and transfer of its duties. There was little reason to be concerned with 

logrolling in Dix; the appropriation provision was required for the implementation 

of the new organizations created in the bill. 

{¶ 87} Here, however, there can be no successful argument that the writtentransfer-agreement provisions have a nexus to the biennial budget. Nothing about 

the challenged provisions is germane to the budget bill passed every two years by 

the General Assembly. 

{¶ 88} Moreover, 15 years after Dix, this court recognized that Dix may 

weigh too heavily in favor of the General Assembly and that this court had, in the 

interim years, made “clear that we no longer view the one-subject rule as toothless.” 

Simmons-Harris, 86 Ohio St.3d at 15, 711 N.E.2d 203. Yet toothless it would be 

if this court accepted the state’s arguments and permitted any provisions that 

brought “greater order or cohesion” or “improvement” to any laws to be bound 

together in a single piece of legislation even when those provisions are not germane 

to a single subject. 

{¶ 89} Having found that both R.C. 3727.60 and 3702.304 violate the onesubject rule, I find that R.C. 3702.303 is in violation as well, because the state relies 
SUPREME COURT OF OHIO

34 

only on its connections to the other two provisions to save it from a one-subject 

challenge. 

B. The Sixth District Properly Considered the Constitutionality of the Statutory 

Scheme and Correctly Determined That It Created An Undue Burden 

{¶ 90} The state argues that this court should not consider whether the 

statutory scheme places an undue burden on a woman’s ability to obtain a 

previability abortion. I disagree and would find the written-transfer-agreement 

provisions create an undue burden. 

1. This court must consider the undue-burden challenge 

{¶ 91} First, in its appeal to the Sixth District, the state itself raised the 

undue-burden issue. Rather than asking the court not to rule on the undue-burden 

challenge due to waiver or lack of evidence, the state argued that the standard in 

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 878, 

112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), was inapplicable because this case does 

not involve facial challenges to abortion-specific laws. Having the matter before 

it, the Sixth District could not ignore the United States Supreme Court’s undueburden analysis in Whole Woman’s Health v. Hellerstedt, __ U.S. __, 136 S.Ct. 

2292, 195 L.Ed.2d 665 (2016), which was released during the court of appeals’ 

review of this matter. “It has long been settled that the Supremacy Clause binds 

state courts to decisions of the United States Supreme Court on questions of federal 

statutory and constitutional law.” State v. Burnett, 93 Ohio St.3d 419, 422, 755 

N.E.2d 857 (2001). 

{¶ 92} Further, this court has specifically held that “[w]hen an issue of law 

that was not argued below is implicit in another issue that was argued and is 

presented by an appeal, we may consider and resolve that implicit issue.” Belvedere 

Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 279, 

617 N.E.2d 1075 (1993), modified in part on other grounds, Dombroski v. 

WellPoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-4827, 895 N.E.2d 538. See also 
January Term, 2018 

35 

State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 683, ¶ 68-70. 

Here, the state asks us to uphold the written-transfer-agreement provisions on the 

basis that they are “a valid health-and-safety regulation that applies to all outpatient 

surgical clinics, and * * * not an undue burden.” To make such a finding without 

applying the recently clarified standards in Whole Woman’s Health regarding 

undue burden would also run afoul of the Supremacy Clause. The state 

affirmatively put the undue-burden standard at issue before the Sixth District, 

asking that court to reverse the common pleas court on that basis, and then raised it 

again before this court. The state cannot now claim it is prejudiced by Capital 

Care’s arguments on the merits of the undue-burden challenge. 

2. The undue-burden standard is applicable to any law affecting a woman’s 

right to a previability abortion 

{¶ 93} Next, the state argues that the undue-burden standard is not 

applicable to laws not directly targeting abortion clinics. That argument is 

repudiated by Whole Woman’s Health. Although it concerns laws specifically 

applicable to abortion clinics, the court’s description of the undue-burden standard 

clearly makes it applicable to more neutral laws that have the “effect of presenting 

a substantial obstacle to a woman seeking an abortion.” Whole Woman’s Health at 

__, 136 S.Ct. at 2309, 195 L.Ed.2d 665, citing Casey, 505 U.S. at 878, 112 S.Ct. 

2791, 120 L.Ed.2d 674. 

{¶ 94} The state argues that “when neutral laws of general applicability 

merely intersect with a constitutional right, those laws do not trigger the same form 

of judicial review afforded to regulations actually aimed at the constitutional right.” 

But the United States Supreme Court has held that a neutral law affecting a 

substantial right may be subject to more stringent review than a neutral law not 

impacting a substantial right. See Holt v. Hobbs, __ U.S. __, 135 S.Ct. 853, 859, 

190 L.Ed.2d 747 (2015) (Emp. Div., Dept. of Human Resources of Oregon v. Smith, 

494 U.S. 872, 882, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) held that “neutral, 
SUPREME COURT OF OHIO

36 

generally applicable laws that incidentally burden the exercise of religion usually

do not violate the Free Exercise Clause of the First Amendment” [emphasis 

added]). 

{¶ 95} Indeed, the authoring justices in Casey set forth a specific standard 

that was adopted by the court in Whole Woman’s Health: “An undue burden exists, 

and therefore a provision of law is invalid, if its purpose or effect is to place a 

substantial obstacle in the path of a woman seeking an abortion before the fetus 

attains viability.” (Emphasis added.) Casey at 878. See also Whole Woman’s 

Health at __, 136 S.Ct. at 2309 (“We begin with the standard, as described in 

Casey”). By making the undue-burden test applicable if a law’s “purpose or effect” 

creates a substantial obstacle for a woman to obtain a previability abortion, the court 

explicitly made the test available for challenging laws not specifically proposed to 

create an obstacle but that nonetheless did. (Emphasis added.) Id. 

{¶ 96} Whole Woman’s Health recognized that not every burden placed on 

the ability to procure an abortion is enough to invalidate it. Whole Woman’s Health 

at __, 136 S.Ct. at 2313. The proper test is whether the obstacle is “substantial.” 

Id. at __, 139 S.Ct. at 2309. The court, relying on Casey, did not limit the undueburden standard to abortion-specific laws, but it emphasized that trivial 

impediments will not be unlawful. Id. at __, 136 S.Ct. at 2299. The court in Baird 

recognized this same distinction, rejecting the state’s argument that the undueburden standard was inapplicable. The court explained, “The generally applicable 

and neutral regulation in this case * * * affects an abortion clinic, which is unable 

to satisfy the regulation’s requirements. Therefore, Casey and other relevant case 

law regarding state restrictions on abortion apply.” 438 F.3d at 603.

{¶ 97} The court in Whole Woman’s Health further clarified Casey, stating, 

“The rule announced in Casey * * * requires that courts consider the burdens a law 

imposes on abortion access together with the benefits those laws confer.” __ U.S. 

at __, 136 S.Ct. at 2309. The court also emphasized the need for lower courts to 
January Term, 2018 

37 

apply “judicial review applicable to the regulation of a constitutionally protected 

personal liberty” when abortion rights are at issue. Id. Because I would find that 

under Whole Woman’s Health the undue-burden standard is applicable to this case, 

I now turn to its application. 

3. The record contains sufficient evidence to conduct an undue-burden 

analysis 

{¶ 98} I would find that the facts clearly establish that the written-transferagreement provisions of H.B. 59 place an undue burden on an Ohio woman’s right 

to a previability abortion. 

{¶ 99} Whole Woman’s Health set forth the following test: “consider the 

burdens a law imposes on abortion access together with the benefits those laws 

confer” and determine “whether any burden imposed on abortion access is 

‘undue.’ ” __ U.S. at __, 136 S.Ct. at 2309-2310. I therefore must consider both 

the benefits and burdens that the new statutory scheme imposes. The testimony at 

the Ohio Department of Public Health Licensing hearing provides ample evidence 

to review.2

 

{¶ 100} Dr. Theodore Wymyslo, the director of ODH, testified that the 

written transfer agreement secures the benefit of fast and easy follow-up treatment 

 

2

 Despite now claiming prejudice because of a lack of notice of a constitutional challenge, the state 

objected at least twice at the license-revocation hearing to inquiries related to constitutional matters. 

First, the state objected to a line of questions about where a woman could obtain an abortion if 

Capital Care closed. The state objected to relevance, arguing that “[t]his is a licensure case; this is 

not a constitutional case.” Capital Care’s counsel responded that she was making the foundation 

for a constitutional argument, and the hearing examiner agreed she could make the record. The state 

next objected to questions concerning the burdens women face when they lack access to legal 

abortions. The attorney objected, “[T]his is not a constitutional case. * * * I see the road we’re 

going down. * * * With all due respect, you don’t have the authority to decide constitutional issues. 

And we’re not here to create a record for a federal lawsuit.” The hearing examiner again overruled 

the state’s objections, stating, “I think the Common Pleas court had [sic] the authority to decide a 

constitutional issue. And I’m going to let her make her record.” 
SUPREME COURT OF OHIO

38 

for complications or emergencies resulting from an abortion procedure by “an 

organization that has greater capacity than the ambulatory surgical facility to 

definitively deal with the complication or problem that arises.” He also testified 

that written transfer agreements ensure that “if a patient has a problem, there is 

already a preordained method by which the patient is transferred.” According to 

Dr. Wymyslo, EMTALA does not define what a hospital must do beyond “medical 

assessment and medical treatment when an emergency patient comes in.” The 

emergency room may have to spend “hours of time” learning what happened to the 

patient that caused the emergency visit, which reduces quality of care. Dr. 

Wymyslo also testified that “it’s faster and more efficient and better quality care” 

if patients who need inpatient follow-up care are admitted in a manner that has 

“been preordained and predirected by a prior agreement.” 

{¶ 101} But Dr. Wymyslo admitted that when his own private practice 

experienced an emergency, the office would call 9-1-1 to transport the patient to 

the emergency room. He stated that in a life-threatening situation, emergency 

services would take a patient to the nearest hospital, which would be obligated to 

take care of the patient. 

{¶ 102} Nurse Terrie Hubbard, Capital Care’s owner, testified that she 

asked the fire stations closest to Capital Care where they would take a patient in a 

life-threatening situation. First responders informed her they would take a patient 

from the clinic to Toledo Hospital, and she would have no opportunity to direct the 

ambulance to use the University of Michigan Health System instead. Dr. Wymyslo 

testified that patients who leave an ASF are not obligated to return to seek followup for complications either at the ASF or at the facility with the written transfer 

agreement but “are free to make their own personal decision about where they 

receive care.” Thus, the benefit of a written transfer agreement appears to be only 

theoretical: in case of emergency, first responders would transport the patient to the 

nearest hospital regardless of the existence of a written transfer agreement with the 
January Term, 2018 

39 

hospital; in cases of non-emergency complications after treatment, a patient can go 

where she chooses. 

{¶ 103} The testimony also demonstrated that complications or 

emergencies are rare. Nurse Hubbard testified that during her eight years at Capital 

Care, there was never a need to transfer a patient to the hospital. Dr. Harley Blank, 

an Ohio-licensed doctor since 1964, testified that in his 41 years working at a 

Columbus abortion clinic, approximately six or seven women were transferred to a 

hospital as a result of complications from the abortion procedure. 

{¶ 104} As detailed in the delegation section below, without a written 

transfer agreement or a variance application, the state will have no ability to waive 

the license requirement for Capital Care, and the facility will have to close. Nurse 

Hubbard testified that as of the date of the hearing, despite contacting more than 

ten hospitals and several doctors, she had been unable to find a local hospital willing 

to enter into a written transfer agreement, or a physician willing to offer his or her 

admitting privileges as a means of obtaining a variance. Dr. Wymyslo testified that 

the only abortion clinic he knew of in northwestern Ohio was Capital Care and that 

if it closed, women would have to travel to Cleveland or Columbus to obtain an 

abortion at a licensed clinic. Nurse Hubbard testified that Capital Care patients 

come from Indiana, Michigan, West Virginia, and Ohio. 

{¶ 105} Dr. Blank testified that in his opinion as a gynecologist, there would 

be a negative effect on Ohio women if they did not have access to safe, legal 

abortions. Specifically, he testified that during his medical residency he witnessed 

two to three “botched illegal abortions a week with sometimes catastrophic 

consequences,” including death. He identified other complications from illegal 

abortions, including infection, bleeding, perforation of the uterus, loss of fertility, 

and loss of productivity. 
SUPREME COURT OF OHIO

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4. The written-transfer-agreement provisions create an undue burden 

{¶ 106} The testimony establishes that there is no benefit in the writtentransfer-agreement provisions for patients in life-threatening situations, who will 

be sent to the nearest hospital notwithstanding the clinic’s written transfer 

agreement. At best, the written-transfer-agreement provisions confer a theoretical 

benefit to patients who seek follow-up care for non-emergency complications 

related to their abortion procedures and who may have a simpler time obtaining 

treatment at a hospital with a written transfer agreement. But the evidence shows 

a very small number of women require treatment for non-emergency complications 

while they are still at the facility and there is no evidence that a patient would 

specifically seek out the hospital with the written transfer agreement instead of a 

healthcare facility close to home after leaving the clinic. 

{¶ 107} These limited and speculative benefits are not sufficient to justify 

the burdens on access to abortion services caused by the statutes. There is ample 

evidence that R.C. 3703.303, 3703.304, and 3727.60 will cause northwestern 

Ohio’s only remaining abortion clinic to close. Toledo will be left without an 

abortion clinic, forcing women from northwestern Ohio to travel to clinics in 

Cleveland or Columbus to obtain an abortion at a clinic. Obstacles caused by clinic 

closures, including increased crowds and longer weight times at remaining clinics 

and increased travel distance for patients, were recognized as substantial and 

provided a basis for the United States Supreme Court’s determination that the 

admitting-privileges law at issue in Whole Woman’s Health presented an undue 

burden. __ U.S. at __, 136 S.Ct. at 2313, 195 L.Ed.2d 663. 

{¶ 108} Particularly in light of the absence of real benefit conferred by the 

statutes and the burdens created by the written-transfer-agreement provisions, I 

would find that the provisions do not confer benefits sufficient to justify the burden. 

Thus, the laws are unconstitutional. 
January Term, 2018 

41 

C. R.C. 3702.303 and 3702.304 Unconstitutionally Delegates the State’s 

Licensure Power to Private Actors 

{¶ 109} Although the state derides the nondelegation doctrine as dead, that 

obituary is to be written only by the United States Supreme Court, which has not 

yet done so. Although the court has not relied on the private nondelegation doctrine 

for a substantial time, it has not interfered with lower federal courts’ application of 

the doctrine. The Supremacy Clause requires us to follow the United States 

Supreme Court’s interpretation of federal and constitutional law until that court 

explicitly adopts a new understanding. Accordingly, the majority should have 

applied the doctrine to determine if the written transfer and variance laws constitute 

an unconstitutional delegation of authority to a third-party, in this case doctors and 

hospitals. I find they do. 

1. The nondelegation doctrine is not dead 

{¶ 110} The nondelegation doctrine has a long history in constitutional law. 

Initially, courts invoked the doctrine to prevent Congress from delegating 

lawmaking authority to the executive branch. Mistretta v. United States, 488 U.S. 

361, 371-372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), quoting Field v. Clark, 143 

U.S. 649, 692, 12 S.Ct. 495, 36 L.Ed. 294 (1892) (“ ‘the integrity and maintenance 

of the system of government ordained by the Constitution’ mandate that Congress 

generally cannot delegate its legislative power to another Branch”). Later, the court 

applied the doctrine to prevent the legislature from vesting state authority in private 

actors who were not constrained by the due-process clause. Carter v. Carter Coal 

Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936). See also Larkin v. Grendel’s 

Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). 

{¶ 111} In Carter, the United States Supreme Court considered a federal 

law delegating power to fix maximum hours of labor and wages for coal miners to 

large regional coal producers. The court found that “[t]his is legislative delegation 

in its most obnoxious form; for it is not even delegation to an official or an official 
SUPREME COURT OF OHIO

42 

body, presumptively disinterested, but to private persons whose interests may be 

and often are adverse to the interests of others in the same business.” Id. at 311. 

The court declared, “[A] statute which attempts to confer such power undertakes 

an intolerable and unconstitutional interference with personal liberty and private 

property [and is] clearly a denial of rights safeguarded by the due process clause of 

the Fifth Amendment.” Id. 

{¶ 112} The court mentioned the nondelegation doctrine again in Mistretta, 

in which it upheld Congress’s delegation of power to the United States Sentencing 

Commission because “ ‘[t]he statute * * * explains what the Commission should 

do and how it should do it, and sets out specific directives to govern particular 

situations.’ ” Id. at 379, quoting United States v. Chambless, 680 F.Supp. 793, 796 

(E.D.La. 1988). And in a more recent case, although a majority of the court passed 

on applying the private nondelegation doctrine because it found Amtrak is a public 

entity for purposes of congressional delegation, Justice Alito described the dangers 

of private delegation in his concurring opinion. Dept. of Transp. v. Assn. of Am. 

RRs., __U.S. __, 135 S.Ct. 1225, 1234, 191 L.Ed.2d 153 (2015) (Alito, J., 

concurring). He warned: “Liberty requires accountability. When citizens cannot 

readily identify the source of legislation or regulation that affects their lives, 

Government officials can wield power without owning up to the consequences. 

One way the Government can regulate without accountability is by passing off a 

Government operation as an independent private concern.” Id. 

{¶ 113} Justice Alito expressed particular concern about the law’s provision 

for appointment of an arbitrator to conduct binding arbitration between the Federal 

Railroad Administration and Amtrak if the parties could not agree on certain 

regulatory metrics and standards. Id. at 1236. He wrote, “If the arbitrator can be a 

private person, this law is unconstitutional. Even the United States accepts that 

‘Congress cannot delegate regulatory authority to a private entity.’ ” Id. at 1237, 

quoting Assn. of Am. RRs. v. United States Dept. of Transp. 721 F.3d 666, 670 
January Term, 2018 

43 

(D.C.Cir.2013) While recognizing the Supreme Court’s reluctance to apply the 

nondelegation doctrine when Congress vests power in other agencies, Justice Alito 

declared, “When it comes to private entities * * * there is not even a fig leaf of 

constitutional justification.” Id.

{¶ 114} This court has also considered the nondelegation doctrine in Ohio, 

albeit in limited circumstances. In Redman v. Ohio Dept. of Indus. Relations, this 

court considered the nondelegation doctrine as it related to the General Assembly 

granting power to an administrative agency. 75 Ohio St.3d 399, 662 N.E.2d 352 

(1996). In that context, this court found, “ ‘A statute does not unconstitutionally 

delegate legislative power if it establishes, through legislative policy and such 

standards as are practical, an intelligible principle to which the administrative 

officer or body must conform and further establishes a procedure whereby exercise 

of the discretion can be reviewed effectively.’ ” Id. at 406, quoting Blue Cross of 

Northeast Ohio v. Ratchford, 64 Ohio St.2d 256, 416 N.E.2d 614 (1980), syllabus. 

Although Redman concerned delegation to an agency, when the legislature 

delegates authority to a private actor at least as high a standard for intelligible 

principles governing the procedure and ability to review is necessary. 

2. Federal courts routinely apply the nondelegation doctrine to laws 

requiring written transfer agreements and admitting privileges 

{¶ 115} At least eight federal courts cases have applied the private 

nondelegation doctrine to regulations and statutes governing abortion clinics since 

the United States Supreme Court decided a woman has a fundamental right to an 

abortion in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). In 

Hallmark Clinic v. North Carolina Dept. of Human Resources, 380 F.Supp. 1153 

(E.D.N.C. 1974), the district court enjoined enforcement of a North Carolina 

regulation requiring abortion clinics to have written transfer agreements. In that 

case, it was undisputed that the state had “placed no limits on the hospital’s decision 

to grant or withhold a transfer agreement, or even to ignore a request for one.” Id. 
SUPREME COURT OF OHIO

44 

at 1158. The court recognized that “the Supreme Court has repeatedly held that 

licensing schemes are invalid unless official discretion to deny permits is confined 

by precise standards” and determined that “[b]y conditioning the license on a 

transfer agreement, the state has given hospitals the arbitrary power to veto the 

performance of abortions for any reason or no reason at all.” Id. The court 

concluded, “If the state is determined to utilize hospitals as a control factor for the 

protection of patients in freestanding abortion clinics then it must establish and 

enforce standards for admission to hospital staff privileges.” Id. at 1159. 

{¶ 116} A federal district court in Michigan struck down a similar writtentransfer-agreement requirement as part of a licensing scheme in that state. Birth 

Control Ctrs., Inc. v. Reizen, 508 F.Supp. 1366 (E.D.Mich.1981), aff’d in part and 

vacated in part on other grounds, 743 F.2d 352 (6th Cir.1984). The Michigan 

licensing rule required an abortion clinic to have a written transfer agreement with 

a hospital less than 30 minutes away or, according to the Department of Public 

Health’s interpretation, at least an agreement with a physician who had staff 

privileges at such a hospital and agreed to be the admitting and attending physician 

for abortion clinic patients seeking follow-up care at the hospital. The court found 

that the rule and the interpretation violated “due process concepts because they 

delegate a licensing function to private entities without standards to guide their 

discretion.” Id. at 1374. The court further determined that it was not relevant that 

the rule applied to all freestanding surgical outpatient facilities because the “defect 

lies in the delegation of unguided power to a private entity, whose self-interest 

could color its decision to assist licensure of a competitor.” Id. at 1374-1375. The 

court concluded that such a “delegation without standards or safeguards to protect 

unfairness, arbitrariness or favoritism is void for lack of due process.” Id. at 1375. 

{¶ 117} More recently, a Wisconsin district court invalidated a state law 

prohibiting a physician from performing an abortion unless he or she had admitting 

privileges at a hospital within 30 miles of the location where the abortion was to 
January Term, 2018 

45 

take place. Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 94 F.Supp.3d 

949, 953 (W.D.Wis.2015) (“Van Hollen II”), aff’d, 806 F.3d 908 (7th Cir.2015). In 

an earlier decision in which the district court denied the clinic’s motion for 

summary judgment, it observed that the Fourteenth Amendment to the United 

States Constitution prohibits states from depriving license holders of their right to 

continue to do business without due process and that “[p]art of this protection is 

insuring that any delegation to a private, non-state actor ‘sets clear boundaries’ on 

the exercise of discretion by ‘contain[ing] detailed directives.’ ” Planned 

Parenthood of Wisconsin, Inc. v. Van Hollen, 23 F.Supp.3d 956, 962 

(W.D.Wis.2014), quoting United States v. Goodwin, 717 F.3d 511, 517 (7th 

Cir.2013). After reviewing all of the evidence at trial, the district court found that 

the statute puts “quality monitoring in the hands of private entities with nonuniform criteria and with admitted interests having nothing to do with an individual 

doctor’s quality of care” and that “those interests run counter to granting privileges 

to abortion providers, who unquestionably offer little chance of hospital referrals 

and a real risk of controversy if formally associated with the hospital.” Van Hollen 

II at 979. The court found relevant that “the statutory provision does not provide a 

mechanism by which the State could intervene, for example by providing a waiver 

to the admission privilege because the physician’s qualifications were not at issue.” 

Id. at 996. Ultimately, the district court concluded that because the admittingprivileges requirement did not further a legitimate state interest, it could not be 

imposed through third parties absent a waiver provision or some other mechanism 

to ensure due process. Id. at 979. Compare Women’s Health Ctr. of West Cty., Inc. 

v. Webster, 871 F.2d 1377, 1382 (8th Cir.1989), and Planned Parenthood of 

Greater Texas Surgical Health Servs. v. Abbott, 748 F.3d 583, 600 (5th Cir.2014) 

(finding state requirements that abortion providers, not clinics, have admitting 

privileges at a hospital is no more of a significant threat to the providers’ due-
SUPREME COURT OF OHIO

46 

process rights than the requirement that those performing abortions be licensed 

physicians). 

{¶ 118} Although some federal courts have ruled in favor of states on 

delegation challenges related to abortion-clinic licensing, those cases are readily 

distinguished because they involve more detailed directives from the state or more 

substantial review authority. 

{¶ 119} In Greenville Women’s Clinic v. Commr., South Carolina Dept. of 

Health & Environmental Control, 317 F.3d 357 (4th Cir.2002), the appellate court 

rejected a challenge to a rule requiring clinic doctors to have admitting privileges 

at local hospitals. The court relied on the fact that the doctors at the plaintiff clinic 

had been able to secure admitting privileges to establish that “the possibility that 

the requirement will amount to a third-party veto power is so remote” that it could 

not withstand a facial challenge. Id. at 363. The challenge was further weakened 

because South Carolina required public hospitals not to “act unreasonably, 

arbitrarily, capriciously, or discriminatorily in granting or denying admitting 

privileges,” id. at 362, and the clinic could petition the state for a waiver or 

exception to the admitting privilege requirement, id. at 363. 

{¶ 120} In Tucson Woman’s Clinic v. Eden, 379 F.3d 531 (9th Cir.2004), 

the court rejected a challenge to an Arizona regulation requiring that a physician 

with admitting privileges at an Arizona hospital be present at an abortion clinic 

until a patient is stable following each abortion procedure. The court found that 

“Arizona law requires hospitals to refrain from arbitrary provision of admitting 

privileges and requires them to exercise their discretion based on reasons related to 

the hospital’s interest,” id. at 555, and that state law provided for judicial review of 

hospital procedures to determine if they comported with reasonable standards and 

due process, id. at 555-556. 

{¶ 121} Of course, the most relevant federal case to this matter is Women’s 

Med. Professional Corp. v. Baird, 438 F.3d 595 (6th Cir.2006), which upheld 
January Term, 2018 

47 

Ohio’s written-transfer-agreement regulations. The majority relies on later 

versions of these same regulations, upon which R.C. 3702.303 and 3702.304 are 

based, to uphold the license revocation in this case. The regulations require 

ambulatory surgical facilities to have a written transfer agreement with a hospital, 

but an ASF could obtain a variance if “ ‘the director determines that the strict 

application of the license requirement would cause an undue hardship * * * and that 

granting the waiver would not jeopardize the health and safety of any patient.’ ” Id. 

at 599, quoting former Ohio Adm.Code 3701-83-14, 2002-2003 Ohio Monthly 

Record 224, effective September 5, 2002. The district court in Baird had found the 

regulations impermissibly delegated authority to hospitals to grant a license to an 

abortion clinic by entering into a written transfer agreement. Id. at 609. Indeed, 

the director of ODH had “admitted that Ohio has no power over hospitals to direct 

them as to how to respond to requests for written transfer agreements and that 

hospitals could deny such a request for business, religious, personal, or political 

reasons.” Id. 

{¶ 122} The appellate court disagreed and upheld the regulations on the 

narrow basis that the director of ODH “retains authority to grant a waiver of the 

transfer agreement requirement,” unlike in Hallmark Clinic or Reizen. Id. at 610. 

The court held that “[b]ecause the waiver procedure allows the state to make the 

final decision about whether ASFs obtain a license, there was no impermissible 

delegation of authority to a third party.” Id. 

3. R.C. 3702.303 and R.C. 3702.304 violate the nondelegation doctrine 

{¶ 123} The state asserts that this court should reach the same conclusion 

that the Sixth Circuit did in Baird with respect to the statutes challenged here 

because “[t]he Variance Statute basically codified the Department’s prior variance 

practice. It is the Director who ultimately grants facility licenses.” (Emphasis sic.) 

Capital Care counters that the “final decision whether a hospital will sign an 

agreement to transfer a patient or a doctor will sign an agreement to admit a patient, 
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48 

rests in the hands of those third parties * * * [and the director] had no discretion to 

waive these statutory requirements.” Accordingly, Capital Care argues that the 

statutes unlawfully delegate licensing authority to third parties. 

{¶ 124} Because the Sixth Circuit already upheld the constitutionality of the 

variance regulation against a nondelegation doctrine challenge, it is necessary to 

consider how the statute differs. Ohio Adm.Code 3701-83-19(E) requires each 

ASF to “have a written transfer agreement with a hospital for transfer of patients in 

the event of medical complications, emergency situations, and for other needs as 

they arise.” The variance regulation permits the director to “grant a variance or 

waiver from any building or safety requirement,” Ohio Adm.Code 3701-83-14(A), 

if “the director determines that the requirement has been met in an alternative 

manner,” id. at (C)(1), or that “the strict application of the license requirement 

would cause an undue hardship” and “granting the waiver would not jeopardize the 

health and safety of any patient,” id. at (C)(2). 

{¶ 125} Unlike the variance regulation, R.C. 3702.303(C)(2) permits the 

director to grant a variance from the written-transfer-agreement requirement, but 

only if the ASF submits 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,” R.C. 3702.304(B)(2), along with 

“[d]ocumented 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,” R.C. 3702.304(B)(3)(e). 

R.C. 3727.60(B) imposes additional restrictions not found in the regulations, 

prohibiting public hospitals from entering into a written transfer agreement with 

abortion clinics and forbidding doctors with admitting privileges at public hospitals 

from using those privileges to help an abortion clinic obtain a variance. 
January Term, 2018 

49 

{¶ 126} Thus, the ability of the director to grant a variance is substantially 

different under the statutory scheme than under the regulatory scheme, because it 

is conditioned on action by a private actor. Under the rules considered in Baird, 

the director could grant a variance if he determined the licensing requirements were 

met in another manner or grant a waiver if strict application of the requirement 

would cause an undue hardship to the ASF and the waiver would not jeopardize the 

health and safety of the patient. The decision was entirely the director’s. 

{¶ 127} But under the statutory scheme here, the director’s discretion is 

superseded by the ability or willingness of a private actor to associate with the ASF. 

Absent a local private hospital willing to enter into a written transfer agreement 

with an ASF, the only option for the ASF is to obtain an agreement with a physician 

who has admitting privileges at a local private hospital and is willing to use them 

on behalf of the ASF. Without one of these specific agreements from a private 

party, the director has no discretion to grant a waiver. 

{¶ 128} This is plainly a different situation than the federal court 

contemplated in Baird. Without these third-party agreements, there is no 

application for ODH to consider. Unlike the regulations in Baird, the statute here 

is not saved by the director’s authority to review private third-party action through 

the variance process. 

{¶ 129} And unlike the delegations of authority in Greenville Women’s 

Clinic and Eden, the law is not saved by legislatively created principles or standards 

to guide the third parties. The state points to no law that establishes standards or 

procedures for a hospital to follow in determining whether to enter into a written 

transfer agreement or to guide a doctor in determining whether to grant an ASF the 

benefit of his or her admitting privileges for purposes of a variance. 

{¶ 130} Practical, intelligible standards and a procedure for effective review 

are two hallmarks that this court has looked to in delegation by a legislature to even 

an administrative agency, Redman, 75 Ohio St.3d at 406, 662 N.E.2d 352, but in 
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50 

this case the state has provided no standards or review procedure after wholly 

delegating licensing authority to private third-party doctors and hospitals. Here, 

the statutory scheme is exactly what the United States Supreme Court warned 

against in Carter more than 80 years ago—the delegation “to private persons whose 

interests may be and often are adverse to the interests of others in the same 

business.” 298 U.S. at 311, 56 S.Ct. 855, 80 L.Ed. 1160. As the court determined 

then, I would find now that “a statute which attempts to confer such power 

undertakes an intolerable and unconstitutional interference with personal liberty 

and private property” and is “clearly a denial of rights safeguarded by the due 

process clause.” Id. Further, as Justice Alito warned, statutes like these allow the 

government to “regulate without accountability * * * by passing off a Government 

operation as an independent private concern.” Assn. of Am. RRs., __ U.S., at __, 

135 S.Ct. at 1234, 191 L.Ed.2d 153 (Alito, J., concurring). 

{¶ 131} The statutory scheme, if allowed to stand, permits the legislature to 

do through private actors what it may not legally do following Roe and its progeny: 

wholly prevent a woman from exercising her fundamental right to a previability 

abortion. I would find that R.C. 3702.303 and R.C. 3702.304 unconstitutionally 

delegate state licensing authority to private actors without the barest concern for 

due process. Further, I would find that the offending provisions cannot be severed 

and therefore must be invalidated. This invalidation would render R.C. 3727.60 

meaningless, as it relies on the definition of “written transfer agreement” in R.C. 

3702.303 and the variance application process described in R.C. 3702.304. 

III. Conclusion 

For the foregoing reasons, I would affirm the decision of the Sixth District 

Court of Appeals. 

O’NEILL, J., concurs in the foregoing opinion. 

_________________ 
January Term, 2018 

51 

Gerhardstein & Branch Co., L.P.A., Jennifer L. Branch, and Alphonse A. 

Gerhardstein, for appellee. 

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, 

Stephen P. Carney and Peter T. Reed, Deputy Solicitors, and Ryan L. Richardson 

and Tiffany L. Carwile, Assistant Attorneys General, for appellant. 

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