Ohio H.B. 126 was passed in June 2004. The law regulated and restricted the use of mifepristone, an abortion-inducing medication, by requiring that it could only be administered in the exact dosage approved by the FDA in 2000. The law prohibited doctors from altering the dosage based on current medical knowledge, such as by giving a patient a lower dosage that has been proven safe and effective with fewer side effects. (This practice is commonly referred to as off-label or evidence-based usage, and it is common practice throughout the medical field to keep pace with growing knowledge about a medication’s effective usage.) H.B. 126 was a unique law that effectively freezes medicine in time based on evidence more than ten years old.
Legal Theory
Our suit argued that the law is unconstitutionally vague; that the law violates women’s right to bodily integrity; that the law is unconstitutional because it lacks an exception to its restrictions where necessary to protect women’s life or health; and that the law imposes an undue burden on women’s right to choose abortion.
Status Update
On August 2, 2004, we filed our lawsuit in the Southern District of Ohio seeking a preliminary injunction of H.B. 126 on behalf of three Planned Parenthood affiliates in Ohio and Preterm-Cleveland. The lawsuit named as defendants Governor Bob Taft, Ohio Attorney General Jim Petro, and Hamilton County Prosecuting Attorney Michael Allen.
After ten years of litigation in the Southern District and the U.S. Sixth Circuit Court of Appeals, all claims but one were resolved in favor of Defendants. Our remaining claim was that HB 126 lacked an exception to its restrictions where necessary to protect women’s life or health. On April 23, 2013, we filed an amended complaint to have H.B. 126 blocked only as applied to prohibited abortions that are necessary for the preservation of the life or health of the woman. Defendant Ohio Attorney General Mike DeWine filed a Motion to Dismiss on May 28, 2013, and subsequent briefing was concluded on July 16, 2013. DeWine’s Motion was denied on December 2, 2014, and a trial was scheduled for July 26, 2016.
In the interim, the U.S. Food and Drug Administration announced (on March 30, 2015) a label change for Mifepristone which categorizes the formerly “off label” use as a permitted protocol. This announcement effectively mooted the litigation. After a status conference for May 5, 2016, the plaintiffs agreed to dismiss the remaining claim.
On July 7, 2016, we filed a Motion for Attorney Fees and Costs. Defendants appealed the District Court’s Fee Order to the 6th Circuit. Oral argument was held on October 16, 2018.
On July 25, 2019, the Sixth Circuit Court issued a decision and order affirming the lower court’s award of fees. On August 13, Defendants requested an en banc review of the decision, which the Circuit unanimously denied. On August 29, Defendants filed a Motion to Stay the mandate while they petition the U.S. Supreme Court for review. On September 4 the Court granted the stay. On November 22, 2019 the defendants filed a petition for a writ of certiorari. Briefing was concluded on March 4, 2020. The case was distributed for Conference of March 27, 2020.
