Telemedicine abortion law stopped by Hamilton County court

A ban on the use of telemedicine for medication abortions was stopped by a Hamilton County judge on Monday, holding up a law that was set to take effect last week.

Hamilton County Common Pleas Judge Alison Hatheway granted the preliminary injunction requested by Planned Parenthood clinics in Ohio on Senate Bill 260, a bill passed last year that made it unlawful for medication abortion services to be administered via telemedicine.

The health clinics sued claiming the law was unconstitutional, and that it created an unfair burden on clinics who provide abortions compared with other medical providers.

The suit also said abortion access would disappear entirely from Butler, Mahoning and Richland counties, contradicting a constitutional right for residents of those counties.

Abortion is legal in Ohio up to 22 weeks gestation.

At Monday’s hearing, the attorney representing Planned Parenthood called out what she called “factual issues” in the arguments of the state, namely the risks involved in a medication abortion via a two-pill regimen, mifepristone and misoprostol.

The state argued that telemedicine was not appropriate for a medication abortion because of the medications’ risks, such as bleeding or infection, which would require monitoring and possible hospitalization.

Attorney Julie Murray acknowledged risk factors with the medication, just as many other medications have risk factors, but said those risks would not be impacted by a mandated second in-person visit to a clinic.

In documents submitted to the court, an expert witness for the clinics said these risks do not arise until after a second in-person visit would have occurred, and some bleeding is normal in the case of an abortion.

“It becomes clear that not only is this not a narrowly tailored regulation, it is not even remotely rational to think that SB 260 would be responsive to these risks,” Murray said.

Murray also said equal protection under the law was at issue with SB 260, since the medication used in a medication abortion is also used in the treatment of a miscarriage.

The state’s own expert witness said in the treatment of a miscarriage, one of the medications used in the two-pill regimen, misoprostol, can be used by itself. Murray said that information alone shows a lack of equal protection, because the use of the misoprostol to treat miscarriage via telemedicine would be considered legal.

“But if my client wanted to use just misoprostol for an abortion…that would be illegal,” Murray said. “That kind of inconsistency renders SB 260 fundamentally irrational.”

Attorneys representing the state said the argument that the state was removing a legal right to abortion was wrong.

“There’s no fundamental right at issue here,” said attorney Andrew McCartney, of the Ohio Attorney General’s Office.

McCartney said the law impacts “a very narrow subset” of abortion patients and merely returns the state regulations to the “status quo,” meaning the time before medication abortions were developed and available.

Because SB 260 does not impact surgical abortions, McCartney said, other methods of abortion remain available in the state, therefore the telemedicine law does not hinder the ability to get an abortion.

As for Planned Parenthood’s claim that telemedicine allows patients to access medical care closer to their home or workplace and save transportation and other costs related to getting medical care, the state said that is a matter of scheduling and “cost-cutting,” not a matter of constitutional right.

“It’s really (Planned Parenthood’s) own decisions not to staff with physicians their many other health centers, it’s that decision with regard to staffing that creates the problems that plaintiffs have alleged here,” McCartney said. “It’s not something that SB 260 imposes.”

Hatheway granted the injunction “until final judgment is entered in this case,” marking the second injunction Hatheway has granted in an abortion case this year.

Kersha Deibel, president and CEO of the Planned Parenthood Southwest Ohio Region, said the clinics are glad to continue their work as the lawsuit works its way through the courts.

“We’re pleased the judge saw through this blatant attempt to single out and attack abortion access and barred the law from taking effect while the case is ongoing,” Deibel said in a statement.

Anti-abortion lobbying group Ohio Right to Life said the decision was “rooted in politics,” with president Mike Gonidakis stating ORL looks forward “to Attorney General (Dave) Yost defending this vital pro-life protection in court as the legal progress continues.”