Earlier this week in Planned Parenthood v. DeWine, Sixth Cir. No. 11-4062, the Sixth Circuit affirmed the district court’s rejection of Planned Parenthood’s constitutional challenge to Ohio Revised Code § 2919.123, which criminalized the distribution of RU-486 (“the abortion pill”) unless the distribution tracked the FDA protocol regarding gestational time limits and dosage, as established at the time of the drug’s approval.

Planned Parenthood challenged the statute as unconstitutionally vague, violative of a woman’s right to bodily integrity under the Fourteenth Amendment, unduly burdensome to a woman’s Fourteenth Amendment right to choose abortion, and unduly burdensome to a woman’s right to health and life under the Fourteenth Amendment.  The Sixth Circuit accepted the case following the district court’s grant of summary judgment in favor of the State on the first three challenges and the designation of that judgment as appealable under Rule 54(b).

On appeal, the Sixth Court readily rejected Planned Parenthood’s vagueness challenge in light of the Ohio Supreme Court’s clarification of the law at the Sixth Circuit’s request.  The Court likewise uniformly rejected the “bodily integrity” challenge, citing the United States Supreme Court’s elimination of a physical intrusion analysis in the context of abortion regulation review. 

In disposing of the third and final issue, the Court splintered.  Although Judge Moore had authored the majority opinion on the other issues, Judge McKeague authored the majority opinion on the question of whether the statute unduly burdens a woman’s right to choose abortion.  With Judge Rogers concurring, Judge McKeague held that the availability of the more common, surgical abortion procedure (known as a “D & E abortion”) through 63 days of gestation, and its lower cost, negated the claim that the statute unduly burdened a woman’s right to choose.  Specifically, the Court held that, while a woman’s right to an abortion cannot be unduly burdened, there is no similar protection for her preference about the type of abortion available.

Dissenting from the rest of the Court on the final issue, Judge Moore found that the statute unduly burdens a woman’s right to choose abortion by making it less available than the surgical option and requiring multiple doctor’s visits.  At bottom, Judge Moore concluded that the additional burdens placed on medical abortion would leave many women with only one option – a surgical abortion – which many women would find objectionable on various grounds.