Federal Judge Upholds Ohio’s Law on use of RU486

By Dave Andrusko

Judge Dlott

When we briefly reported on U.S. District Judge Susan Dlott’s powerful decision upholding an Ohio law barring use of the RU-486 unless it is administered in compliance with Federal Drug Administration rules, I had intended to come back with a more in-depth story quickly. My apologies for not returning to her May 25 decision until today.

The outcome is potentially far-reaching, which is probably why Planned Parenthood of Cincinnati so vigorously fought the law, passed in 2004. (Because of the aggressive legal maneuvering the law has never gone into effect.)

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—a change PPFA has made but some other abortion clinics haven’t.

These are FDA recommendations, Dr. Randall K. O’Bannon, NRLC Director of Education pointed out. “Absent state regulation, abortionists can use RU486 later in pregnancy than recommended by the FDA and can and will prescribe RU486 in reduced dosages from what the FDA recommended (so-called ‘off-label’ uses),” he said.

As if often the case with abortion laws, Ohio’s requirement that RU486 be used the way the FDA says it should be has gone up and down the legal chain as well as sideways. According to Kevin Koeninger, writing for the Courthouse News Service,

“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 RU486. The 6th Circuit then vacated the permanent injunction, but upheld the preliminary order enjoining the law while the District Court [Judge Dlott] reconsidered its position.

Judge Dlott found Planned Parenthood’s renewed arguments “unavailing.” She came down on the state of Ohio’s side on virtually all the challenges against the law filed by Planned Parenthood, finding, according to Koeninger:

· Vagueness. “The Court is confident that physicians have fair notice of what conduct is prohibited.”

· 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 the state’s motion for summary judgment—“[T]he Act does not force women to undergo any procedure, surgical or otherwise.”

· That the law “unduly burdened” a woman’s right to have an abortion since RU486 is only legally allowed in the first 49 days of gestation. Dlott cited testimony from nine women who underwent surgical abortions after being unable to obtain RU486, and concluded,

“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.”

“While the FDA never should have approved this child-killing drug in the first place,” said O’Bannon, “at least it sought to put in place a protocol that would reduce the safety risk to the mothers taking this drug.”

He added, “The abortion industry doesn’t want to abide by those standards, putting sales ahead of safety.”

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