THE DAILY REPORT
IN THE COURTS | Ohio Supreme Court Restricts Mifepristone Use in State to Scope of FDA's Approval Letter
[July 6, 2009]
In answering two certified questions from the U.S. Court of Appeals for the 6th Circuit, the Ohio State Supreme Court on July 1 declared
that a state law regulating the use of mifepristone -- which is used in medication abortion -- bars physicians from prescribing it for off-label use, BNA
reports. The court confirmed that doctors who use the drug to induce abortion must do so in compliance with the 49-day gestational limit included in FDA's 2000 drug approval letter. Doctors also must prescribe the drug in accordance with the protocols and dosage indications included in its FDA-approved labeling.Interpretation of State Law in Contention
The Ohio General Assembly in 2004 passed a law (Section 2919.123 (A)
) that required any health care professional prescribing or dispensing mifepristone to comply with "all provisions of federal law that govern the use" of the drug. The law defines "federal law" as "any law, rule or regulation of the United States or any drug approval letter" from FDA "that governs or regulates the use of" mifepristone for inducing abortion. FDA's approval letter states that the drug "is indicated for use in the termination of pregnancy (through 49 days' pregnancy) and has no other approved indication for use during pregnancy." In addition, the drug's label states the recommended dosage and that its use requires three office visits by the patient. Planned Parenthood Southwest Ohio Region
challenged the law in district court, arguing that neither FDA's approval letter nor any other federal provision bans the off-label use of mifespristone to induce abortion beyond 49 days' gestation. The group also argued that the state law was unconstitutionally vague because it did not notify abortion providers in advance regarding which FDA documents were included in the state's criminal law. In addition, Planned Parenthood said that prohibiting the evidence-based use of the drug would infringe on the rights of women, requiring them to take higher-than-necessary dosages of the drug or to undergo surgical abortions when a noninvasive alternative is available. The district court ruled in favor of Planned Parenthood, saying that the law was void because of vagueness. The state appealed the decision to the 6th Circuit, which then submitted
two questions to the state Supreme Court seeking its interpretation of the law.
The state Supreme Court ruled that FDA's drug approval letter is included in the definition of "federal law" and that the state law is not ambiguous, according to BNA
. The court said that because the drug approval letter incorporated FDA's labeling text, Ohio physicians cannot prescribe or provide mifepristone to induce abortion outside of the stipulations of the drug approval letter and approved label. According to BNA
, product liability law experts say the ruling will not have an impact outside of mifepristone or the state of Ohio.Case Returns to Appeals Court
Roger Evans of Planned Parenthood Federation of America
said that he is not sure if the court's decision helps or hurts the group's case. Evans said that the district court declared the law unconstitutional based on an interpretation that the statute operates in the same way the state Supreme Court ruled it does. He noted that there are other possible interpretations of the law that would have solved the constitutional issues at the center of the litigation. However, because those issues were not resolved, the case now returns to the 6th Circuit, which will decide if the statute is constitutional based on the state Supreme Court's interpretation. If the circuit court agrees with the district court that the statute is unconstitutionally vague, the state of Ohio could seek a U.S. Supreme Court review. If the circuit court finds that the statute is constitutional, the case likely will be sent back to the district court for resolution of some other issues in the case, according to BNA
The information contained in this publication reflects media coverage of women’s health issues and does not necessarily reflect the views of the National Partnership for Women & Families.