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Abortion, Abortion Pill, News

Court: Ohio’s RU-486 regulation does not place an undue burden on women

Note: an AUL press release about this case can be found here while both briefs filed by AUL are here.

In a long-awaited, but partial conclusion to a case that has been dragging on since 2004, the Southern District of Ohio ruled this week that Ohio’s regulation of RU-486 does not impose an undue burden on women, nor is it unconstitutionally vague. This places women in Ohio one step closer to being better protected from the abortion industry’s all-too-often dangerous misuse of this dangerous abortion drug.

The U.S. Food & Drug Administration (FDA) approved the abortion drug regimen RU-486 (under the brand name Mifeprex) for use only through 49 days gestation. This regimen actually involves two different drugs: oral administration of the drug mifepristone on day one, followed by an oral administration of the drug misoprostol on day 3.

Providing this RU-486 regimen outside of the 49-day time period tested by the FDA is dangerous.  It is generally understood that the percentage of incomplete mifepristone abortions requiring emergency surgical intervention increases with gestational age.  Mifepristone’s failure rate is 8 percent at 49 days gestation, 17 percent at 50-56 days gestation, and 23 percent at 57-63 days gestation.  As the failure rate increases with gestational age, so does the medical risk to women.

Planned Parenthood admits on its website that it provides RU-486 until 63 days gestation—thus, Planned Parenthood provides RU-486 in a manner that fails 23 percent of the time. Of course, when RU-486 fails and the woman comes back for a surgical abortion, Planned Parenthood profits from two abortions instead of just one.

Abortion providers also have routinely instructed women to administer misoprostol (the second drug in the regimen) vaginally instead of orally.  But in 7 of the 8 women in the United States reported to have died after using RU-486, misoprostol was used intravaginally instead of orally.

Based upon the dangerous consequences of such off-label use, Ohio enacted its regulation of RU-486, requiring abortion providers to administer the drug only in the way it was approved by the FDA. As expected, Planned Parenthood challenged the law, and 7 years later the legal battle is ongoing.

The district court’s ruling this week was commendable, although not yet complete. The court ruled that Ohio’s regulation is not unconstitutionally vague and does not impose an undue burden on women. Interestingly, Planned Parenthood had submitted affidavits from nine women who claimed to have had surgical abortions, but would have preferred medical (RU-486) abortions. The court used these affidavits against Planned Parenthood, stating that the affidavits actually demonstrated that these women still had a “safe” option other than RU-486. Thus, abortion advocates were unable to point to an actual woman who has been negatively impacted by the protective regulation.

Unfortunately, the court declined to rule on the issue of whether the law should have a health exception, and that issue will continue on to trial. However, we are encouraged that the women of Ohio are one step closer to being better-protected from the dangerous practices of some abortion providers in Ohio.