The U.S. Court of Appeals for the Sixth Circuit has struck down challenges brought by a Planned Parenthood affiliate to a Ohio law that strictly controls the use and distribution of mifepristone, a drug that induces an abortion without surgery. 

On October 2, a split panel affirmed a grant of summary judgment in favor of the law issued by Chief Judge Susan Dlott of the Southern District of Ohio in three out of four challenges brought by Planned Parenthood Southwest Ohio Region.

The decision could open the door to similar restrictions in other states. According to the state legislative director for Planned Parenthood Advocates in Ohio, Ohio is the only state to control the drug in this way.

The case was brought against Mike DeWine, Ohio’s attorney general, and Joseph Deters, the prosecutor of Hamilton County, Ohio, who represents the class of 88 prosecuting attorneys.

Judge Karen Nelson Moore wrote the majority opinion in Planned Parenthood Southwest Ohio Region v. DeWine, which was joined in part by judges John Rogers and David McKeague. All three panelists affirmed Dlott’s ruling that the 2004 law was not unconstitutionally vague and did not violate a woman’s 14th Amendment right to bodily integrity. McKeague delivered a second majority, joined by Rogers, which held that the law does not unduly burden a woman’s 14th Amendment right to choose abortion. Moore filed a dissent-in-part on that issue.

Planned Parenthood’s fourth claim, that the act “unduly burdens a woman’s right to health and life under the 14th Amendment,” is headed for trial.

The Ohio law regulates the distribution of the mifepristone, also known as RU-486, and criminalizes a doctor’s failure to follow the regulations. It also requires doctors to comply with U.S. Food and Drug Administration (FDA)-approved requirements such as follow-up examinations.

The law has been in effect since February 2011, except for a preliminary injunction concerning the law’s failure to make an exception for circumstances involving the health and life of the mother.

After the drug was invented, Planned Parenthood had developed legal, but off-label uses of the drugs with different dosages than the FDA protocol.

In 2004, three Ohio Planned Parenthood affiliates, two Planned Parenthood doctors and a clinic called Preterm sued the Ohio governor, the Ohio attorney general and local prosecutors in 2004 to enjoin enforcement of the act.

The district court granted a preliminary injunction barring enforcement of the law because the plaintiffs were likely to succeed on the health and life of the mother issue.

On a prior appeal, the Sixth Circuit affirmed the preliminary injunction but held that a health and life exception was not a per se requirement for an abortion regulation.

The district court then granted summary judgment for the plaintiffs on the vagueness issue, and permanently enjoined the law because it was unclear whether it permitted off-label use.

On appeal, the Sixth Circuit asked the Ohio Supreme Court to clarify the law. In 2009, in Cordray v. Planned Parenthood Cincinnati Region, the state’s high court held that the state law required physician compliance with key FDA provisions.

In August 2009, the Sixth Circuit vacated the permanent injunction and remanded the case for review in light of Cordray.

In May 2011, the district court granted the defendants’ summary judgment motion on the plaintiffs’ vagueness, bodily integrity, and undue burden on the right to choose challenges. In September 2011, the district court entered final judgment on those three claims and stayed the remaining proceedings pending appeal.

Addressing the vagueness issue in her October 2 opinion, Moore wrote, “[W]e agree with the State that the Ohio Supreme Court’s explicit interpretation of the Act in Cordray resolved any facial vagueness concerns we might have had.”

With regard to the bodily-integrity claim, Moore cited abortion-specific cases at the Sixth Circuit and the U.S. Supreme Court that applied the undue-burden framework. She wrote that these cases mean “there is little constitutional support for Planned Parenthood’s attempt to return to the stricter balancing standard used in traditional bodily-integrity claims.”

In Moore’s partial dissent on the undue-burden claim, she wrote that “the State has failed to demonstrate an absence of a genuine dispute of material fact regarding whether the Act imposes a substantial obstacle in the path of Ohio women seeking to obtain an abortion of a nonviable fetus. Summary judgment for the State was therefore inappropriate as to this claim.…[T]he majority points to no case either from our court or the Supreme Court requiring affirmative testimony from individual women that they would not have obtained an abortion but for the ban to establish that a total method ban imposes a substantial obstacle.”

In his opinion on the undue burden claim, McKeague wrote that the law’s bar on the use of the drug for abortions between 50 and 63 days after the woman’s last menstrual period and the increased dosage requirements do not pose an undue burden: “Importantly, the Supreme Court has not articulated any rule that would suggest that the right to choose abortion encompasses the right to choose a particular abortion method.”

Planned Parenthood’s lawyer, Jessie Hill, a professor at Case Western Reserve University School of Law, said she’s “very disappointed.…This is a horrible law.”

Hill said that the law requires women to take three times the necessary drugs, increases the cost of the procedure and sometimes requires four trips to the provider.

“Most importantly, it requires some women to have a surgical abortion when a private medical option is available. The fact that the majority could not perceive that this could an undue burden just boggles the mind,” Hill said.

In a press release, Gary Dougherty, the state legislative director for Planned Parenthood Advocates in Ohio, said, “This decision puts ideology over science, and bans a safe method of abortion early in pregnancy that is available to women in all 49 other states.”

In an emailed statement, spokesman Dan Tierney of the Ohio Attorney General’s Office, said DeWine is very pleased by the ruling: “Ohio’s law, which restricts when RU-486 (known as the abortion pill) may be administered, is constitutional. The attorney general’s office will continue to defend the law.”

Speaker of the House of Representatives John Boehner (R-Ohio), U.S. Senator Tom Coburn (R-Okla.) and 16 other members of Congress filed a joint amicus brief supporting the Ohio officials. They support laws requiring adherence to the FDA protocol for administering mifepristone.

Mailee Smith, staff counsel for amicus curiae Americans United for Life, said her organization was encouraged by the Sixth Circuit’s ruling because Ohio’s law aims to protect women from misuse of a risky abortion drug. “Ohio is seeking to protect women from the misuse of an abortion drug that carries substantial risks,” Smith said.

Sheri Qualters can be contacted at squalters@alm.com.