In October a divided panel of Sixth Circuit Court of Appeals judges upheld the state’s law restricting the use of RU-486 as a constitutional restriction to a woman’s right to access abortion. Late last week the full Sixth Circuit denied Planned Parenthood’s request to overturn that October ruling, leaving in place the panel decision and upholding, likely permanently, the state’s restrictions on medical abortions.
The law at issue, HB 126, was first passed in 2004, and 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 further restricts the use of mifepristone to the first seven weeks of pregnancy. After the seventh week of pregnancy the law criminalizes the use and administration of the drug. The law is a specific and intentional prohibition of the common practice of 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. The Sixth Circuit Court of Appeals disagrees.
The ruling is a significant one because it is the first federal appellate decision to rule on the constitutionality of laws restricting the use of RU-486. And while not binding on jurisdictions outside of the Sixth Circuit, which encompasses Kentucky, Michigan, Ohio and Tennessee, other courts that have similar legal challenges to similar restrictions pending, like the Oklahoma Supreme Court, could look to the decision for persuasive authority and decide to follow it.
Planned Parenthood’s options now are to appeal the decision to the Roberts Court or to let it stand as another example of a federal judiciary all too willing to go along with a right-wing agenda of regulating abortion rights out of existence.