The Sixth Circuit Court Of Appeals Weighs Mifepristone Ban With SCOTUS Waiting In The Wings

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Analysis Law and Policy

The Sixth Circuit Court Of Appeals Weighs Mifepristone Ban With SCOTUS Waiting In The Wings

Jessica Mason Pieklo

Earlier this month the Sixth Circuit Court of Appeals heard arguments on the constituitonality of the state of Ohio's 2004 mifepristone ban in a case that could present a direct challenge to Roe v. Wade. Legal standards are increasingly replacing medicinal standards as the guide for what constitutes acceptable medical care, and conservative justices either don’t understand that or they don’t care.

In June 2004 Ohio passed House Bill 126, a bill that regulates the use of the abortion-inducting drug mifepristone. Along with so-called “partial-birth abortion” bans, HB 126 sets the standard for aggressively curbing reproductive rights by direct legislative interference in the practice of medicine. Not surprisingly, the law faced almost immediate legal challenge but now, almost a full nine years later, a case directly challenging the constitutionality of HB 126 may also turn out to launch a direct challenge to Roe v. Wade.

HB 126 regulates and restricts the use of mifepristone by requiring that it can only be administered in the same exact dosage as approved by the Food and Drug Administration in 2000. This is a specific and intentional prohibition of off-label use of the drug, a common medical practice where doctors alter the dosage of a medication based on current medical knowledge and individual patient needs. The law also imposes criminal and administrative penalties on doctors who prescribe mifepristone past 49 days of a woman’s last menstrual period (LMP). 

For those women with gestational ages through 49 days LMP, HB 126 does not ban the use of mifepristone, but instead requires an oral does of 600 mg of mifepristone followed by an oral administration of a lesser does of misoprostol two days later as dictated by the FDA’s original approval in 2000. Since 2000 we’ve learned that this is approximately three times the amount of mifepristone needed to help induce abortion in many cases, and while ingesting 600 mg of mifepristone is considered safe, there is no advantage nor medical need to take three times as much medication as is necessary. Yet that is the law in Ohio.

HB 126 also requires women follow the treatment protocol printed in 2000, which requires no less than four separate clinic visits when taking mifepristone. This includes one visit for a follow-up ultrasound to confirm termination of the pregnancy. HB 126 mandates this as the legal course of medical treatment for women with no exceptions of any kind.

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At the time the law was passed it was considered an aggressive and controversial move by anti-choice activists to push a potential challenge to Roe. Challengers to the ban argue the law is unconstitutionally vague and impermissibly interferes with a woman’s constitutionally protected privacy rights. Supporters of the ban insist the law is nothing more than a reasonable regulation of abortion and therefore constitutional. Opponents launched a legal challenge within two months attacking the constitutionality of the law and challenging the legislature’s insistence on substituting its judgment for medically sound, peer-reviewed evidence on the safety and efficacy of mifepristone.

Initially the law was enjoined, but through a series of procedural rulings and challenges the Ohio Supreme Court was ultimately asked to address the off-label use of mifepristone specifically under state law before the issue of the constitutionality of the ban could be reached by the federal court.

In a split decision that reverberated with political engineering and charges of judicial bias, the Ohio Supreme Court ruled that the state law did properly ban the use of mifepristone. The opinion openly embraced the idea that legislators can and should dictate specific medical practices in the name of regulating abortion and sent the issue of the constitutionality of the ban back to the federal courts with a Supreme Court that is increasingly hostile to abortion rights waiting in the shadows.

A series of procedural challenges and rulings resulted in the law being enjoined. But in May, 2011 a federal district court ruled that since the Ohio ban failed to include an exception for the life or health of a woman it was unconstitutional. On the surface that sounds like a good result. But the court also ruled the ban was not too vague nor did it impose an undue burden on a patient’s right to choose abortion, nor did the ban violate a woman’s right to bodily integrity, all holdings that directly challenge the fundamental constitutional protections of reproductive rights. And now all these issues sit before the conservative Sixth Circuit bolstered by an Ohio Supreme Court that saw no problem with legislators dictating medical practice.

A decision from the Sixth Circuit should come by the end of the summer and, should the ban be upheld women’s rights activists could be faced with a similar dilemma in the wake of the Fifth Circuit Texas mandatory ultrasound law.

In the meantime and while those legal challenges snake their way through the courts, what we are left with in Ohio, and elsewhere in states like Kansas, Arizona, Texas, Virginia and on and on is an increasingly destructive relationship between anti-choice legislators and the treatment of women medical patients. These types of bans don’t just limit choices women have in accessing reproductive health care, they fundamentally change how doctors are allowed to treat women. Legal standards are increasingly replacing medicinal standards as the guide for what constitutes acceptable medical care, and conservative justices either don’t understand that or they don’t care. We’ve seen this in the Fifth Circuit with the mandatory ultrasound decision and we could likely see it again from the Sixth Circuit and mifepristone bans. And if we push the issue even further, we’ll likely see it from the Supreme Court as well.