Judge OK’s Law Curbing Abortion Drug RU-486

CINCINNATI (CN) - A federal judge backtracked on her initial finding that an Ohio law restricting the availability of the abortion drug RU-486 was unconstitutionally vague.

After the Food and Drug Administration approved RU-486, generically known as mifepristone, for use in the United States about 11 years ago, anti-abortion groups across the nation began campaigning for its withdrawal.

In 2004, the Ohio Legislature passed a law that limits administration of the drug to physicians only, and makes other specifications.

Before the statute could be enacted, however, the Cincinnati chapter of Planned Parenthood and other abortion providers filed suit, seeking an injunction against the law, which they claimed was unconstitutionally vague, lacked an exception to protect patients' lives or health and was unduly burdensome on patients' right to an abortion.

Planned Parenthood attributed the law's vagueness to "language requiring physicians to comply with 'all provisions of the federal law' [that] did not make clear what specific standards physicians must follow in order to prescribe or administer mifepristone without risking prosecution."

The abortion providers maintained that the law requires doctors to follow the FDA's printed labeling for the drug, though that labeling is contradictory and consists of four separate documents.

This dispute has been navigating various courts at the federal level for years. Initially the District Court voided the law for vagueness and permanently enjoined its enforcement. On appeal, the 6th Circuit then certified questions to the Ohio Supreme Court, which in turn found that the law's language adheres to the FDA's approval letter for RU-486.

The 6th Circuit then vacated the permanent injunction, but upheld the preliminary order enjoining the law while the District Court reconsidered its position.

On remand, U.S. District Judge Susan Dlott called Planned Parenthoods' renewed arguments for summary judgment "unavailing."

"Both arguments are incompatible with the Ohio Supreme Court's holding that the Act expressly requires physicians to comply with the gestational limitation, treatment protocols, and dosage indications in the final printed labeling," Dlott wrote Monday.

Dlott granted summary judgment for Ohio Attorney General Mike DeWine on the vagueness claim. "The Court is confident that physicians have fair notice of what conduct is prohibited," she wrote.

DeWine also filed for summary judgment on Planned Parenthood's claim that the act "violates a woman's right to bodily integrity because it compels surgical abortion in circumstances where medical abortion would otherwise be desired or appropriate treatment."

Dlott granted this motion for summary judgment as well, noting that "the Act does not force women to undergo any procedure, surgical or otherwise."

"When broken down, Plaintiffs' argument appears to be this: by prohibiting off-label use of mifepristone, the Act leaves women with gestational durations exceeding 49-days with no other option but a surgical abortion to terminate their pregnancies," according to the 30-page ruling. "While this may be true, it does not change the fact that the Act itself does not compel women to undergo surgery to terminate a pregnancy."

DeWine and the other defendants were also granted summary judgment on the claim that the law unduly burdened women's right to have an abortion since RU-486 is only legally allowed in the first 49 days of gestation.

Citing testimony from nine women who underwent surgical abortions after being unable to obtain RU-486, Dlott found that the law's restrictions are not unduly burdensome.

"The fact that each of these women were able to obtain an abortion using a safe, commonly used procedure convinces that Court that the Act does not create a substantial obstacle to the abortion right," she wrote.

Dlott declined, however, to dismiss the claim that says the law is unconstitutional because it lacks an exception to protect the health or life of the mother.

"Defendants argue that medical disagreement exists over the need for a health or life exception, and yet Defendants also concede that surgical abortions pose greater risks for women with medical complications," Dlott wrote. "These contentions are, at a minimum, laden with contested factual issues that cannot be resolved in Defendants' favor on summary judgment."

"The current record indicates, and Defendants concede, that surgical abortions pose greater risks for women with medical complications," she added. "Additionally, both parties are able to articulate the discrete instances in which an off-label mifepristone abortion may be medically necessary."

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