Women's Medical Professional Corp. v. Baird, No. 03-4249.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtJulia Smith Gibbons
Citation438 F.3d 595
Decision Date17 February 2006
Docket NumberNo. 03-4249.,No. 04-3060.
PartiesWOMEN'S MEDICAL PROFESSIONAL CORPORATION; Martin Haskell, M.D., Plaintiffs-Appellees, v. J. Nick BAIRD, M.D., Director of Ohio Department of Health, Defendant-Appellant.
438 F.3d 595
WOMEN'S MEDICAL PROFESSIONAL CORPORATION; Martin Haskell, M.D., Plaintiffs-Appellees,
v.
J. Nick BAIRD, M.D., Director of Ohio Department of Health, Defendant-Appellant.
No. 03-4249.
No. 04-3060.
United States Court of Appeals, Sixth Circuit.
Argued and Submitted: February 3, 2005.
Decided and Filed: February 17, 2006.

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ARGUED: Diane R. Brey, Office of the Attorney General, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Laufman & Gerhardstein, Cincinnati, Ohio, for Appellees. ON BRIEF: Diane R. Brey, Douglas R. Cole, Stephen P. Carney, Dennis

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G. Nealon, Winston M. Ford, Office of the Attorney General, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Laufman & Gerhardstein, Cincinnati, Ohio, David C. Greer, Bieser, Greer & Landis, Dayton, Ohio, for Appellees.

Before: GIBBONS and SUTTON, Circuit Judges; EDGAR, District Judge.*

GIBBONS, J., delivered the opinion of the court, in which EDGAR, D.J., joined.

SUTTON, J. (pp. 616 — 20), delivered a separate opinion concurring in part and dissenting in part.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.


Plaintiff-appellee Women's Medical Professional Corporation ("WMPC") operates an abortion clinic in Dayton, Ohio. Under Ohio law, the Dayton clinic is required to be licensed. The clinic attempted to enter into a written transfer agreement with a Dayton-area hospital in order to meet the requirements necessary to obtain a license. No hospital would enter into a transfer agreement with the clinic. WMPC therefore sought a waiver of the transfer agreement requirement; in its application, it stated that it had a back-up group of physicians that would provide care in the event of an emergency, and it also provided a letter from Miami Valley Hospital, stating that the hospital would accept patients in the event of an emergency. Defendant-appellant Director J. Nick Baird, M.D., of the Ohio Department of Health ("ODH") denied WMPC's request for a waiver, proposed to issue an order denying its license application, and issued a cease-and-desist order requiring the clinic to close immediately. WMPC filed a complaint in the United States District Court for the Southern District of Ohio seeking a temporary restraining order ("TRO") and injunction against enforcement of the cease-and-desist order. WMPC argued that the written transfer agreement requirement was unconstitutional as applied to the Dayton clinic. United States District Judge Susan J. Dlott granted the TRO. The case was then transferred to United States District Judge Algenon Marbley. Judge Marbley conducted a nonjury trial and granted WMPC's motion for a permanent injunction, preventing Director Baird from enforcing the written transfer agreement requirement against the Dayton clinic. He also awarded WMPC attorneys' fees and expenses.

Director Baird now appeals the district court's grant of a permanent injunction and award of attorneys' fees and expenses. For the following reasons, we affirm the district court with respect to its conclusion that WMPC's procedural due process rights were violated, but vacate the grant of a permanent injunction and remand the case for a hearing on the proposed denial of the license application. We affirm the award of attorneys' fees and expenses.

I.

Under Ohio law, ambulatory surgical facilities ("ASF") must be licensed.1 Ohio

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Rev.Code § 3702.30(E)(1). ODH regulates ASFs. Its director is authorized to establish quality standards. Id. § 3702.30(B). As part of these quality standards, the director promulgated a requirement that ASFs have a written transfer agreement with a local hospital. Ohio Admin. Code § 3701-83-19(E). The transfer agreement requirement ensures that the ASF can transfer patients "in the event of medical complications, emergency situations, and for other needs as they arise." Id.

In order to obtain a license, an ASF must meet the licensing requirements or apply for a waiver or variance of the requirement. The director can grant a waiver only if "the director determines that the strict application of the license requirement would cause an undue hardship to the [health care facility] and that granting the waiver would not jeopardize the health and safety of any patient." Ohio Admin. Code § 3701-83-14(B)(2). The director can approve a variance if "the director determines that the requirement has been met in an alternative manner." Id. § 3701-83-14(B)(1). It is solely within the director's discretion as to whether a variance or waiver should be granted. Id. § 3701-83-14(D). The director's refusal to grant a variance or waiver does not create any rights to a hearing under Ohio law. Id. § 3701-83-14(E).

WMPC is owned by Dr. Martin Haskell. WMPC operates abortion clinics in Dayton (the subject of this lawsuit), Cincinnati, and Indianapolis. Dr. Haskell performs abortions at all three clinics.

The Dayton clinic is approximately forty-five to fifty-five miles away from the next closest abortion clinic in Cincinnati. It is also the only clinic in southern Ohio providing abortion services up to twenty-four weeks. According to Dr. Haskell, he is the "only provider in southern Ohio that goes past 18 or 19 weeks through the 24th week of pregnancy." Evidence in the record suggests that the only other clinics in Ohio also offering late second trimester abortions are located in Cleveland.

The Dayton clinic opened in 1983. It was not required to have an ASF license for many years; after the ASF licensure requirements were enacted, it operated without a license. In 1999, the director of ODH visited this clinic and advised that it must apply for a license. Along with other facilities, the Dayton clinic argued that it was not an ASF; however, an Ohio court ruled that it was an ASF. Founder's Women's Health Ctr. v. Ohio State Dep't of Health, Nos. 01AP-872, 01AP-873, 2002 WL 1933886 (Ohio Ct.App. Aug. 15, 2002).

In October 2002, the Dayton clinic applied for a license.2 In order to meet the transfer agreement requirement, it asked two Dayton hospitals to sign such an agreement. Grandview Hospital declined. Miami Valley Hospital initially agreed to enter into a transfer agreement. However, on November 19, 2002, it notified Dr. Haskell that it would be terminating the agreement within thirty days.3

Unable to find another hospital that would enter into a written transfer agreement, WMPC requested a waiver of this requirement for the Dayton clinic on December

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20, 2002. In support of the waiver application, WMPC included a letter from Miami Valley Hospital, which stated that "the Miami Valley Hospital Emergency and Trauma Center will be available to any of your patients that have an emergency medical condition." WMPC also stated that it had an oral agreement with an unnamed, five-member obstetrics and gynecology group to provide back-up care.4 WMPC did not name the physicians associated with the group in its waiver request because the group requested that its identity and association with the abortion clinic be kept confidential for security reasons. WMPC concluded its waiver request with a statement offering to provide ODH with further information if needed.

During the time that WMPC was seeking a license, the Ohio governor's office, ODH, and Director Baird received numerous letters urging Director Baird to close the Dayton clinic. Approximately 378 letters asked ODH to close the clinic, 365 letters asked ODH not to grant a waiver, and 300 letters asked ODH to "enforce the law against Dr. Haskell." Director Baird also received letters from the Mayor of the City of Kettering, where the clinic is located, and State Senator Jim Jordan asking him to deny the waiver application. The Mayor of the City of Kettering wrote a letter to Director Baird, stating that "Kettering is not proud to be the location of an acknowledged `late-term abortion' clinic" and asking Director Baird to "enforce the state law" and have the "Ohio Department of health [sic] . . . be our protectors." Senator Jordan's letter asked Director Baird to "grant no exceptions or waivers to the center, especially in regards to the transfer agreement." Director Baird responded to Senator Jordan in a letter stating that "we have confirmed that the transfer agreement was rescinded by the hospital effective December 20th . . . and are conferring with legal counsel to determine the options available to us subsequent to December 20th."

Also during this time period, Jodi Govern, Chief Counsel for ODH, communicated on a regular basis with representatives of right-to-life groups regarding the status of the license application. Before Miami Valley rescinded its transfer agreement, Govern communicated with a member of Ohio Right to Life to tell her of two deficiencies in the Dayton clinic's application. She told the Ohio Right to Life member that she "would appreciate it if [she] could share this information with [her] colleagues in Dayton." After Miami Valley rescinded the transfer agreement, representatives of Dayton Right to Life and Ohio Right to Life asked Govern for another update. Govern responded that the agreement would no longer be in effect after December 20, 2002 and that "[w]e are exploring options that we can exercise subsequent to that date, and will keep you appraised." A Dayton Right to Life member then asked for more detailed information on what could be expected. Govern e-mailed her and the Ohio Right to Life representative stating that "we have no intention of letting this drag out."5

On January 9, 2003, Director Baird denied the waiver request, citing the lack of a written transfer agreement. In a letter, he stated, "It is my belief that the tacit agreement made between the Women's Medical Center Medical Director and unnamed members of an area Obstetrics-Gynecology

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practice is not a sufficient protection" for patients. That same day, Director Baird ordered Dr. Haskell to...

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    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 8, 2013
    ...that he or she has been deprived of a protected property interest without adequate process. Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir.2006). “A contract, such as a collective bargaining agreement, may create a property interest.” Leary, 228 F.3d at 741. Yet it is unclea......
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    • U.S. District Court — Middle District of Louisiana
    • February 24, 2022
    ...state did not afford him adequate procedural rights prior to depriving him of the property interest.” Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). In the context of raising a procedural due process claim, Plaintiff alleges that her children have the “constitutional......
  • Dahlstrom v. Butler, Case No. 2:18-cv-101
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • January 3, 2019
    ...under the Due Process Clause, and (2) a deprivation of that interest (3) without adequate process. Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). Plaintiff fails to allege a protected liberty or property interest. A prisoner does not have a protected liberty interest......
  • Ward v. Thompson, Case No. 1:13-cv-580
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • June 29, 2015
    ...under the Due Process Clause, and (2) a deprivation of that interest (3) without adequate process. Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). "Without a protected liberty or property interest, there can be no federal procedural due process claim." Experimental Ho......
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351 cases
  • City of Pontiac Retired Emps. Ass'n v. Schimmel, No. 12–2087.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 8, 2013
    ...that he or she has been deprived of a protected property interest without adequate process. Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir.2006). “A contract, such as a collective bargaining agreement, may create a property interest.” Leary, 228 F.3d at 741. Yet it is unclea......
  • Miranda v. Alexander, Civil Action 21-535-JWD-RLB
    • United States
    • U.S. District Court — Middle District of Louisiana
    • February 24, 2022
    ...state did not afford him adequate procedural rights prior to depriving him of the property interest.” Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). In the context of raising a procedural due process claim, Plaintiff alleges that her children have the “constitutional......
  • Dahlstrom v. Butler, Case No. 2:18-cv-101
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • January 3, 2019
    ...under the Due Process Clause, and (2) a deprivation of that interest (3) without adequate process. Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). Plaintiff fails to allege a protected liberty or property interest. A prisoner does not have a protected liberty interest......
  • Ward v. Thompson, Case No. 1:13-cv-580
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • June 29, 2015
    ...under the Due Process Clause, and (2) a deprivation of that interest (3) without adequate process. Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). "Without a protected liberty or property interest, there can be no federal procedural due process claim." Experimental Ho......
  • Request a trial to view additional results

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