Ohio Supreme Court abortion cases

The Ohio Supreme Court decided two abortion cases yesterday.

In the first, Roe v. Planned Parenthood Southwest Region, it was held that the parents of a teenager who had had an abortion at a clinic were not entitled to abuse reports or medical records kept by the clinic of other minors treated there.

The majority decision here, written by Justice Evelyn Lundberg Stratton, held that: (1) a balancing test for the disclosure of confidential medical information set forth in the 1999 Ohio Supreme Court decision, Biddle v. Warren General Hospital, applies only as a defense against the tort of unauthorized disclosure of such records and does not create a right to discover confidential medical records of nonparties in a private lawsuit; (2) a former version of the state law requiring health care professionals to report suspected child abuse did not authorize an award of punitive damages for failure to report abuse; and (3) legislative amendments to the abuse-reporting law enacted in December 2008 affect a substantive right and therefore may not be applied retroactively to claims that arose before the law was amended. ( Court’s Summary )


The second case, Cordray v. Planned Parenthood Cincinnati Region, was a certified question from the Sixth Circuit Court of Appeals asking the Supreme Court of Ohio to review and interpret R.C. 2929.123 and to answer two certified questions: “1) Does O.R.C. § 2919.123 mandate that physicians in Ohio who perform abortions using mifepristone do so in compliance with the forty-nine-day gestational limit described in the FDA approval letter?” and “2) Does O.R.C. § 2919.123 mandate that physicians in Ohio who perform abortions using mifepristone do so in compliance with the treatment protocols and dosage indications described in the drug’s final printed labeling?”

In 2004, the Ohio General Assembly enacted R.C. 2919.123, a new section of state law that barred Ohio physicians from administering or prescribing RU-486 to induce an abortion unless the drug was provided to a patient “in accordance with all provisions of federal law that govern the use of RU-486.” “Before the new law took effect,” the Court’s summary recounts, “Planned Parenthood of Southwest Ohio and other plaintiffs filed suit in federal district court asserting four different legal bases on which the statute was unconstitutional and therefore unenforceable. The district court granted a temporary injunction preventing state officials or local prosecutors from enforcing the statute. In 2006, while the temporary injunction remained in place, the U.S. District Court for the Southern District of Ohio granted summary judgment in favor of Planned Parenthood, holding that R.C. 2929.123 was unconstitutionally vague and permanently enjoining enforcement of the entire statute.” The state appealed that decision to the Sixth Circuit, which in turn, certified the above questions to the Ohio Supreme Court.

The Court yesterday here answers both questions, holding that “state law enacted in 2004 mandates that Ohio physicians providing the drug mifepristone (RU 486) to patients for the purpose of inducing an abortion must do so in accordance with the approval letter and final printed labeling for the drug issued by the U.S. Food and Drug Administration (FDA), which includes compliance with the 49-day gestational limit and with the treatment protocols and dosage indications expressly approved by the FDA.”

“Today’s ruling,” the Court’s summary states, “does not address the constitutionality of the state law in question, R.C. 2919.123, but only interprets the language of the statute in response to a request by the U.S. Sixth Circuit Court of Appeals. The Sixth Circuit requested today’s ruling in connection with an ongoing federal lawsuit in which Planned Parenthood and other Ohio providers of abortion services have challenged the constitutionality of R.C. 2919.123. That lawsuit remains pending in the federal courts.”