Ohio Limits on Abortion Drug Upheld by the 6th

CINCINNATI (CN) - The 6th Circuit upheld an Ohio law that limits use of the abortion drug RU-486, relying on guidance from the state Supreme Court.

Planned Parenthood and abortion providers had slammed the law as unconstitutionally vague because it directs doctors to follow "federal law" when administering RU-486, generically known as mifepristone.

The law has been in force since February 2011, but for an injunction covering circumstances involving the health and life of the mother.

In May 2011, after the case had already gone before the federal appeals court and the Ohio Supreme Court, U.S. District Judge Susan Dlott granted summary judgment for the state.

The federal appeals court affirmed last week, noting that Dlott had properly relied on guidance from the state's highest judicial authority.

"The Ohio Supreme Court held that under the act, "a physician may provide mifepristone for the purpose of inducing an abortion only through the patient's 49th day of pregnancy and only by using the dosage indications and treatment protocols expressly approved by the FDA in the drug's final printed labeling as incorporated by the drug approval letter,'" Judge Karen Nelson Moore wrote for the three-judge panel. "In light of this clarification, the district court held that the Act was no longer unconstitutionally vague because a reasonable person would know what conduct was prohibited."

"The Ohio State Supreme Court's explicit interpretation of the act ... resolved any facial vagueness concerns we might have had," she added.

Moore and her colleagues disagreed that the law violates women's bodily integrity by denying medical abortions to women between days 50 and 63 of their pregnancies.

"The Supreme Court has made clear that abortion regulations, even those limiting access to a certain kind of procedure, are analyzed under the undue-burden framework and not the classical physical-intrusion framework discussed above," Moore wrote. "We could just as easily say that the partial-birth abortion ban 'forces' a woman to have a D & E [dilation and evacuation] abortion when she may prefer the (banned) D & X [dilation and evacuation] abortion, but that does not negate the consent the woman must give in order for her physician to perform the procedure. If the only available abortion method is so undesirable as to make the woman choose to have no abortion at all, the undue-burden framework remains the appropriate remedy for addressing that concern." (Parentheses in original; brackets added.)

Planned Parenthood also failed to persuade the court that the law places an undue burden on women seeking an abortion.

"The sheer fact that roughly a third of Planned Parenthood's patients have elected a medical abortion over a surgical abortion suggests that eliminating medical abortions may cause a large fraction of women to forego having an abortion altogether," Moore wrote.

Judge David McKeague wrote the majority opinion as to a section with which Moore took exception. Joined by Judge John Rogers, McKeague questioned the affidavits of women indicating "that some women prefer a medical abortion over a surgical abortion."

These statements "do not support the conclusion that the unavailability of a medical abortion would create a substantial obstacle for a large fraction of women in deciding whether to have an abortion," he wrote (emphasis in original).

In a partial dissent, Moore said that "the majority ignores the fact that the very reason surgical abortions are now less expensive is because the act requires the medical abortions to use more medicine."

"The extent of the act's burden on a woman's constitutional rights, as it relates to the gestational limits and the dosage requirements, is a genuinely disputed issue of material fact not ripe for summary judgment in this case," Moore wrote.

McKeague disputed this claim.

"The only woman who mentioned the increased cost in her statement specifically said that this would make it difficult for her to choose medical abortion, but not that it would be a burden on her choice to abort her pregnancy," he wrote (emphasis in original).

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