HB 126, first passed in 2004, 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 and restricts the use of mifepristone to the first seven weeks of pregnancy. After the seventh week, use and administration of the drug is criminalized. It’s a specific and intentional prohibition of the off-label use of the drug, and a restriction challengers contend is unconstitutionally vague, intrusive, and imposes an undue burden on a woman’s right to choose early, safe abortion.
U.S. District Judge Susan Dlott had previously ruled the restrictions were reasonable and this ruling from the Sixth Circuit affirms that ruling.
The Sixth Circuit decision settles all but one of the legal challenges to the bill. Judge Dlott must still decide whether the law is constitutional without an exception that would loosen restrictions on off-label use of the pill for health and safety reasons.
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Judge Karen Nelson Moore was the lone dissent from the Sixth Circuit. Because nearly 20 percent of abortions performed in Ohio are non-surgical, banning the use of the drug in the manner of HB 126 would unduly burden women who prefer medical abortions to surgical ones.
“Surgical abortions, as the name suggests, require surgery, a physically invasive procedure,” Moore wrote. “We simply should not conclude as a matter of law that every woman who would prefer a medical abortion would be equally likely to obtain a surgical abortion.”
The two judges in the majority, judges David McKeague and John Rogers disagreed. “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,” McKeague wrote.
The ruling could be appealed to the Supreme Court which would place the issue of whether a right to chose abortion includes the right to chose a particular abortion method before the Roberts Court.