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Ohio AG Will Not Enforce Unclear Regulation on Fetal Tissue Disposal

December 22, 2015 — Ohio Attorney General Mike DeWine (R) on Friday said the state would not enforce a vaguely worded regulation governing the disposal of fetal tissue, the Cincinnati Enquirer reports (Balmert, Cincinnati Enquirer, 12/18).

Background

DeWine earlier this month said an investigation of Planned Parenthood following the release of misleading videos targeting the organization's fetal tissue donation program did not find evidence that Planned Parenthood in Ohio had profited from the sale of fetal tissue. According to officials with Planned Parenthood in Ohio, the state affiliate does not donate fetal tissue.

However, DeWine said the investigation found that the organization improperly disposed of fetal tissue. The Ohio Administrative Code holds that "a fetus shall be disposed of in a humane manner," but it does not specify what is considered "humane," nor does it outline penalties for violating the code. DeWine said he would seek an injunction to block Planned Parenthood from disposing of fetal tissue in the manner identified in the investigation.

Last Sunday, Planned Parenthood filed a lawsuit against the state over the allegations. In the lawsuit, Planned Parenthood contends that the state violated the organization's due process and equal protection rights by modifying the interpretation of the state's rules on disposing of fetal tissue without notice and then targeting Planned Parenthood unfairly. Lawyers for the organization said Richard Hodges, the state's director of health, did not act according to standard procedure, which usually entails providing notice of any alleged violations and allotting time to make corrections. According to the lawsuit, Planned Parenthood did not learn of the alleged violations until after it contacted state officials.

Planned Parenthood said the allegations are "inflammatory," politically motivated and aim to ban abortion in Ohio. The organization noted that it follows the same protocols as ambulatory surgical facilities and hospitals, which typically make arrangements with third parties for medical waste disposal. Planned Parenthood also noted that it had never received citations from the Ohio Department of Health for violating the state's regulations on fetal tissue disposal.

Last week, U.S. District Judge Edmund Sargus issued a temporary restraining order that prevents the state from taking any legal action against Planned Parenthood until Jan. 11 (Women's Health Policy Report, 12/15). Meanwhile, Planned Parenthood has ended its contract with the medical waste disposal company, Accu Medical Waste Services, and entered a new contract with a different company.

Latest Developments

DeWine on Friday said the Ohio Department of Health would not enforce the "humane disposal" requirement and will instead work with state lawmakers to clarify the language (Cincinnati Enquirer, 12/18). He said the decision reflected Sargus' ruling.

According to the AP/Lexington Herald-Leader, state lawmakers proposed one measure (SB 254) in the state Senate that would impose additional requirements on fetal tissue disposal (Sanner, AP/Lexington Herald-Leader, 12/18). It would require that a woman who has received abortion care be asked to decide, in writing, whether to dispose of the fetal tissue by burial or cremation. If a woman does not make a decision, the abortion provider must choose the method of disposal and document the action taken. A similar measure (HB 36) was proposed in the state House prior to DeWine's announcement (Women's Health Policy Report, 12/15).

Comments

Mary DiOrio, medical director for the Ohio Department of Health, said, "It is clear that the law is vague and needs to be addressed" (AP/Lexington Herald-Leader, 12/18).

Separately, Jerry Lawson, CEO of Planned Parenthood Southwest Ohio said the organization has always disposed of fetal tissue with licensed medical waste companies, as do other medical providers. He added, "At Planned Parenthood, we remain focused on providing care to the women in Ohio who count on us" (Cincinnati Enquirer, 12/18).