Planned Parenthood v. Taft , 331 F. App'x 387 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0539n.06
Nos. 06-4422, 06-4423 FILED
Aug 06, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
PLANNED PARENTHOOD )
SOUTHWEST OHIO REGION; )
PLANNED PARENTHOOD OF )
NORTHEAST OHIO; PLANNED )
PARENTHOOD OF CENTRAL )
OHIO; PRETERM; DR. ROSLYN )
KADE; AND DR. LASZLO SOGOR, )
)
Plaintiffs-Appellees, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
TED STRICKLAND, Governor of the )
State of Ohio, )
) ORDER
Defendant, )
)
RICHARD CORDRAY, Attorney )
General of Ohio, and JOSEPH T. )
DETERS, Hamilton County )
Prosecuting Attorney, )
)
Defendants-Appellants. )
_______________________________________)
Before: MOORE, ROGERS, and McKEAGUE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. This case involves the constitutionality of
Ohio Revised Code (“O.R.C.”) § 2919.123, which regulates the use of mifepristone to provide
medical abortions. In 2004 the district court issued a preliminary injunction because it found that
the statute lacked a health exception. Planned Parenthood Cincinnati Region v. Taft, 337 F. Supp.
Nos. 06-4422, 06-4423
-2-
2d 1040 (S.D. Ohio 2004). We vacated the injunction in part and remanded to the district court for
further consideration of the breadth of the injunction and of the other arguments raised by the parties.
Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502 (6th Cir. 2006). On remand, the
district court granted summary judgment and a permanent injunction in favor of plaintiffs based on
its conclusion that § 2919.123 was unconstitutionally vague. Planned Parenthood Cincinnati Region
v. Taft, 459 F. Supp. 2d 626 (S.D. Ohio 2006).
On appeal from the permanent injunction, we issued an order certifying two questions to the
Ohio Supreme Court: “(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?” Planned Parenthood Cincinnati Region
v. Strickland, 531 F.3d 406 (6th Cir. 2008). The Ohio Supreme Court recently answered both of
these certified questions. Cordray v. Planned Parenthood Cincinnati Region, Slip Op. No. 2009-
Ohio-2972. In light of this opinion by the Ohio Supreme Court, we VACATE the permanent
injunction issued by the district court. The preliminary injunction that we AFFIRMED in part
remains in force as per our previous opinion. See Taft, 444 F.3d at 518. We REMAND the case to
the district court for consideration of the Ohio Supreme Court’s opinion as well as issues identified
in our previous remand and any other issues that the parties may raise.