By Dan Horn
The Cincinnati Enquirer

A federal judge ruled Friday that a Dayton abortion clinic can remain open even though it is not licensed by the Ohio Department of Health.

U.S. District Judge Susan Dlott issued a temporary restraining order that will keep the clinic open pending a hearing on whether the state's licensing rules are fair.

The state health department attempted to close the Women's Med Center of Dayton after the clinic failed to obtain agreements from nearby hospitals promising to provide emergency medical care if needed.

Lawyers for the clinic complained that the agreements, known as "transfer agreements," were an unreasonable requirement because some hospitals refuse to associate with abortion clinics.

The lawyers said the requirement could make it impossible for some clinics to provide services, even though they are just as safe as clinics that are able to obtain transfer agreements.

"This is an arbitrary rule," said Al Gerhardstein, the clinic's lawyer. "Facilities in certain communities can't get (transfer agreements). It's not fair."

Officials at the Department of Health say the clinic is the first in the state to be ordered closed because of a failure to obtain transfer agreements. The department did not have the authority to shut down clinics until state lawmakers changed the rules last year.

"We're trying to enforce the rules and laws of the state of Ohio," said Jay Carey, spokesman for the health department.

Under the law, all ambulatory surgical facilities must obtain transfer agreements to get a license. Mr. Carey said the Dayton clinic was denied a license solely because it failed to obtain the agreements.

But Mr. Gerhardstein said two hospitals near the clinic refused to sign the agreements, making it impossible for the clinic to obtain a license and denying residents in the area access to legal abortions.

Mr. Gerhardstein said care at the clinic is excellent and any patient who needs emergency medical attention would still have access to the hospitals, with or without a transfer agreement.

He said the health department's decision to deny the clinic a license may have been "politically motivated." Mr. Carey said the department is merely trying to enforce the law.

Judge Dlott will have a hearing within 10 days, then decide whether to extend the restraining order pending a hearing on whether the licensing rules are constitutional.

E-mail dhorn@enquirer.com