Lead Opinion
*1211*363{¶ 1} This mаtter 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 ,
{¶ 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 *364whether 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 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, *1212which 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 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.
*365{¶ 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 Adm.Code 3701-83-19(E). The next day, ODH Director Theodore E. Wymyslo, M.D., issued notice *1213of 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 situаtions occur or medical complications arise.
*366The 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 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 carе 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 *1214of 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 interest *367of 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 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 *368Whole Woman's Health v. Hellerstedt , 579 U.S. ----,
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 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.Cоde 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 non-emergency 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 *369burden 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 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 *1216R.C. 119.12(M), which specifies that the court may affirm the ordеr if it is "supported by reliable, probative, and substantial evidence and is in accordance with law."
{¶ 25} In Univ. of Cincinnati v. Conrad ,
{¶ 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).
{¶ 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 *370an 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 *1217determination that Capital Care did not comply with Ohio 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 ,
*371{¶ 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 in 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." State v. Talty ,
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 *121820, 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 the constitutional questions, concluding that R.C. 3702.303, 3702.304, and 3727.60 violate the Single Subject Clause and delegate licensing authority to third parties-and without the benefit of briefing or argument, it also held that these statutes impose an undue burden on abortion rights. However, because *372ODH 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.
Concurrence Opinion
{¶ 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 one-subject analysis illustrates why it is time for this court to reexamine our one-subject-rule 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.
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).
*373{¶ 39} Five years later, this court decided Pim v. Nicholson ,
{¶ 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 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.
{¶ 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 after 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.' "
*374(Emphasis deleted.) State ex rel. Dix v. Celeste ,
{¶ 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,
*1220{¶ 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,
{¶ 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."
{¶ 46} Over the next two decades, however, the cоurt began to turn slowly away from these limiting principles. See, e.g. , State ex rel. Hinkle v. Franklin Cty. Bd. of Elections ,
{¶ 47} In Nowak , this court announced that it would no longer view the one-subject 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 *375invalidating 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.
O'Connor, C.J., dissenting.
*1221{¶ 50} The majority resolves this case by finding that apрellant'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 regulations, 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 *376state 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.
{¶ 53} The administrative code requires an ASF to have a transfer agreement with a hospitаl. 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 that 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 *1222state 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.
{¶ 56} If Capital Care violated some other part of the regulation, R.C. 119.07 requirеd 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.
*377{¶ 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 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 3727.60, the court has authority to *378"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 one-subject *1223challenge 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 ,
{¶ 63} Although Capital Care was not explicit about the scope of its one-subject 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 written transfer agreement provisions were not passed on their own merits, but rather were added as riders ," and "Ohio legislators buried controversial anti-abortion 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 *379challenge 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 Capital Care's one-subject challenge should be limited. For these reasons, I would find that Capital Care properly challenged the vаlidity 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 one-subject rule
{¶ 65} The concurring opinion's position that this court has no power to enforce the *1224one-subject rule is untenable. 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 ,
{¶ 67} The people first imposed the one-subject rule in the 1851 Ohio Constitution. "The particular grievances leading to the Ohio Constitutional Convention of *3801850-51 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 ,
{¶ 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. ,
{¶ 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 one-subject rule is directory. Pim v. Nicholson ,
{¶ 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."
*382{¶ 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 ,
{¶ 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.' "
*1227{¶ 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,
{¶ 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 ,
{¶ 77} This court has held that a school-voucher program created in an appropriations bill was invalid due to the one-subject rule because there was blatant disunity between the program and the other items in the bill, particularly when the state provided no rational reason for their combination.
{¶ 78} On the other hand, this court found that a tax-levying provision in an appropriations bill was valid "because the tax fund[ed] government operations described elsewhere in the Act." ComTech Sys., Inc. v. Limbach ,
{¶ 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 *384operations by clarifying variance standards. These improvements relate to the *1228funding 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 that 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 a public hospital 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 life-threatening 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-threаtening 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 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 ,
{¶ 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 *385that it would save the public entity 5 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 *1229stream. 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 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."
{¶ 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 written-transfer-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 ,
{¶ 89} Having found that both R.C. 3727.60 and 3702.304 violate the one-subject rule, I find that R.C. 3702.303 is in violation as well, because the state relies 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 *1230Planned Parenthood of Southeastern Pennsylvania v. Casey ,
{¶ 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. ,
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 ----,
{¶ 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. ----,
{¶ 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 *1231purpose 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,
{¶ 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 ----,
3. The record contains sufficient evidence to conduct an undue-burden analysis
{¶ 98} I would find that the facts clearly establish that the written-transfer-agreement 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.' " Id . at ----,
*1232*389{¶ 100} Dr. Theodore Wymyslo, the director of ODH, testified that the written transfer agreement secures the benefit of fast and easy follow-up treatment 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 had 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 follow-up treatment 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 hospital; in cases of nonemergency 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 *390Columbus 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 transfer-agreement 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 *1233to 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.
4. The written-transfer-agreement provisions create an undue burden
{¶ 106} The testimony establishes that there is no benefit in the written-transfer-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 nonemergency 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 nonemergency 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 *391increased 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 ----,
{¶ 108} Particularly in light of the absence of real benefits 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.
C. R.C. 3702.303 and 3702.304 Unconstitutionally Delegate 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 dоctrine. 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, *1234the majority should have applied the doctrine to determine if the written-transfer-agreement 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 ,
{¶ 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 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 *392an 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,
{¶ 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.
{¶ 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.
2. Federal courts routinely apply the nondelegation doctrine to laws requiring written transfer agreements and admitting privileges
{¶ 115} At least eight federal-court 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 ,
{¶ 116} A federal district court in Michigan struck down a similar written-transfer-agreement requirеment as part of a licensing scheme in that state. Birth Control Ctrs., Inc. v. Reizen ,
{¶ 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 take place. Planned Parenthood of Wisconsin, Inc. v. Van Hollen ,
{¶ 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 ,
{¶ 120} In Tucson Woman's Clinic v. Eden ,
{¶ 121} Of course, the most relevant federal case to this matter is Women's Med. Professional Corp. v. Baird ,
{¶ 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 . Baird at 610. The court held that "[b]ecause the waiver procedure allows the state to make *396the final decision about whether ASFs obtain a license, there was no impermissible delegation of authority to a third party."
3. R.C. 3702.303 and 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, 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.
*1238{¶ 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," Ohio Adm.Code 3701-83-14(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," Ohio Adm.Code 3701-83-14(C)(1).
{¶ 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.
{¶ 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 *397Baird , 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 associаte 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 *1239determining 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 ,
*398{¶ 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 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
{¶ 132} For the foregoing reasons, I would affirm the judgment of the Sixth District Court of Appeals.
O'Neill, J., concurs in the foregoing opinion.
Notes
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 ,
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 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.
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.)
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 the question's 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 state's 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."