Medical Abortion and Bodily Integrity

By Sherry F. Colb

In my Justia Verdict column this week, I discuss Ohio restrictions on medical abortions in the light of a Sixth Circuit decision (Planned Parenthood v. DeWine),  upholding those restrictions against a variety of constitutional challenges.  My column focuses on several ways in which medical abortions (i.e., abortions in which medications terminate a pregnancy) differ from surgical abortions and why medical abortions pose a unique threat to the rhetorical and legal strategies of the pro-life movement in the United States.

In this post, I want to turn my attention to a particular feature of surgical abortions giving rise to one of the  claims rejected by the Sixth Circuit in DeWine, the claim that the restrictions on medical abortions unconstitutionally invade a pregnant woman's bodily integrity.

In her majority opinion in DeWine, Judge Karen Nelson Moore explained that bodily integrity is a crucial component of the constitutional right to terminate a pregnancy, as affirmed in Planned Parenthood v. Casey.  Judge Moore went on to clarify, however, that the Casey undue burden standard (and not the usual "strict scrutiny") is the appropriate legal standard under which to challenge laws that interfere with a woman's right to terminate a pregnancy, thereby intruding upon her right to bodily integrity.

The restriction raising the issue of bodily integrity in DeWine was the Ohio prohibition against the use of RU-486 (an abortion medication) beyond seven weeks from the first day of the pregnant woman's last menstrual period (LMP).  In practical terms, this restriction means that a woman has three weeks from the date on which she misses a period to obtain an abortion via RU-486.  Beyond that date, Ohio law leaves her with only the surgical option, if she wishes to terminate her prergnancy.

Before the Ohio law in question went into effect, but after clinical trials had indicated the safety of medical abortions in the eight and ninth weeks after a woman's LMP, Planned Parenthood administered RU-486 through the ninth week after a pregnant woman's LMP.  Under the Ohio law, however, providers would risk felony prosecution if they deviated from the particular protocol described by the FDA in 2000, when it first approved distribution and use of RU-486.  For our purposes, it is helpful to note that off-label uses of medications are ordinarily permissible (and quite widespread), but that state law -- in this case, Ohio law -- may criminalize off-label uses when the legislature sees fit, and Ohio did precisely that in the case of RU-486,  effectively tethering the permissible use of medical abortion to the particular dosages and gestational limits that the FDA envisioned in 2000, before further clinical study had occurred.

Reacting to this effective ban on medical abortion in the eighth and ninth weeks after a pregnant woman's LMP, Planned Parenthood argued, among other things, that the restriction violates a woman's bodily integrity because it forces her to undergo the physically invasive process of surgical abortion, having eliminated  access to the medical alternative.  For a surgical abortion, a provider inserts a speculum and other medical instruments into the patient's vagina, thus interfering with her bodily integrity.  For a medical abortion, by contrast, no such vaginal insertions by providers are necessary.

The Sixth Circuit considered this bodily integrity claim but rejected it under the undue burden standard, on the ground that faced with the choice of a surgical abortion or no abortion, even the women who would have preferred a medical abortion still, for the most part, voluntarily selected the surgery.  Women must give informed consent prior to a surgical abortion, and they are empowered by law to refuse consent and thereby to avoid the surgical intervention and accompanying invasions of bodily integrity.  And, on the evidence offered by Planned Parenthood in opposing summary judgment, the intrusion involved was plainly not great enough to deter women from having an abortion at all.  In short, the Constitution protects a woman's choice to terminate a pregnancy, but not her choice of method, according to the Sixth Circuit.

For a full understanding of the issue, however, it is necessary for us to consider the context in which a woman "chooses" to have medical providers insert a speculum and other medical instruments into her vagina.  After nine weeks from her LMP, through no fault of the Ohio legislature, she has only two medically safe options -- either to undergo the surgery or to take her pregnancy to term.  In the two weeks between seven and nine weeks post-LMP, however -- a time when many women first discover that they are pregnant -- she would, absent Ohio law, have access to a medical option, under which she could choose not to carry her pregnancy to term and not to undergo the invasive process of surgical abortion.  It is accordingly Ohio law that forces her to choose between unwanted pregnancy and invasive vaginal penetration.  To want to avoid both is not simply a "preference" for one method over another, as the Sixth Circuit majority suggests, but the exercise of a longstanding interest in preserving one's bodily integrity.

If the choice to terminate a pregnancy is to be meaningfully protected by the Constitution, then the abortion option  ought not to carry with it a legally-mandated and medically unnecessary pre-condition of vaginal penetration.  In Ohio, with the Sixth Circuit's blessing, however, it now does.