Reproductive Freedom on the Docket

Planned Parenthood Southwest Ohio Region, et al. v. DeWine, et al.

This case falls into the legal category of:

Status:
Active
Case Dates:
Monday, 2 August, 2004 - ongoing
Facts:

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:

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 claims 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. On August 19, 2016, Defendants filed their responses in opposition to our Motion, and on October 14, 2016, we filed our Reply.

On March 29, 2017 the Court held a hearing on our motion for attorney fees. On July 21, 2017, the Court granted our Motion for Attorney Fees and Costs, and ordered us to provide further evidence in support of the amount we had requested. We supplied this supplemental evidence. On August 18, 2017, Defendants DeWine and Deters (in the office of the original Defendant Allen) filed notices of appeal in the Sixth Circuit, indicating that they planned to appeal the Judge’s July 21 order.

On August 23, 2017, the appeals were docketed in the Sixth Circuit. On October 10, 2017, the State filed a motion to consolidate the two appeals, and on October 11 the Sixth Circuit consolidated them. After receiving extensions, the State filed its brief on December 20, 2017. We filed our response brief on February 2, 2018. After receiving an extension of time, the State filed its reply brief on March 2, 2018. The court has not yet set a date for oral argument.