NRL News

Appeals Court Panel upholds 2004 Ohio law regulating use of RU486

by | Oct 11, 2012

By Dave Andrusko

U.S. District Judge Susan Dlott

A three-judge panel of the 6th Circuit Court of Appeals has upheld a 2004 Ohio law which requires that the two-drug RU486 abortion technique be administered consistent with the protocol established by the Federal Drug Administration (FDA).

Planned Parenthood and other “abortion providers” challenged the law, which has been up and down the legal ladder for years, on several grounds. They maintained that the law directing abortionists to follow “federal law” when administering RU486 is “vague,” violates a woman’s “bodily integrity,” and “unduly burdens” a woman’s right to an abortion.

For our purposes here, the most important FDA requirements are that the abortifacient not be used past the seventh week (a limitation which PPFA and other abortion providers freely concede they ignore); that abortionists use three RU486 pills, rather than one; and that the accompanying prostaglandin misoprostol be administered by mouth, not vaginally.

As NRL News Today reported on May 2011, U.S. District Judge Susan Dlott upheld the Ohio law, rejecting all of Planned Parenthood’s arguments. She delivered her decision after the case had already gone before the federal appeals court and the Ohio Supreme Court and cited the opinion of the state’s highest court in her decision. So, too, did the appeals court panel.

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

Plaintiffs also argued that by denying so-called “medical abortions” between days 50 and 63 (8th and 9th weeks of pregnancy), the Ohio law violates a woman’s “bodily integrity.” Courthouse News quotes from Judge Moore’s opinion–

“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.”

The panel also rejected the undue burden argument, according to Courthouse News, although Moore dissented from the section written by Judge David McKeague, joined by Judge John Rogers.

“McKeague questioned the affidavits of women indicating ‘that some women prefer a medical abortion over a surgical abortion,’” Courthouse News reported.

“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.”

McKeague added, “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.”

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Categories: RU486
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