Ohio’s Governor DeWine announced on August 1, 2019 that he will be delaying the execution of Warren Henness in the state due to challenges in obtaining execution drugs and the risk that Ohio will negatively impact patients’ access to medicines if the state uses medicines against companies’ wishes.
In announcing the delay, the Governor cited public health concerns raised by pharmaceutical companies who communicated their opposition to the misuse of their medicines to state officials in Ohio, expressing the risks that such misuse could result in shortages that would harm patients nationwide. Companies have long communicated such risks to state officials, with several companies noting that “[t]he use of their medicines for lethal injections … creates a public-health risk because it could result in the denial of medicines from patients who need them most.”
Federal district court Judge Merz issued an opinion barring the state from purchasing drugs through anonymous agents, and commenting on the legitimate interests of pharmaceutical companies to prevent their medicines from being misused in executions. The opinion notes that “the sale of execution drugs to the State of Ohio . . . would be an unfree transaction if a seller had announced its intention not to have its products used for executions and then were deceived in a sale to the State because the drugs were being bought by an anonymous agent.” The opinion goes on to say that “it is not the duty of the federal courts to assist in the obtaining of those drugs by deception, by allowing a state agent to attempt to acquire those drugs by remaining anonymous.”
Earlier this year, Governor DeWine stayed executions and instructed officials to come up with a new lethal injection execution protocol. In light of the concerns raised by companies, the governor has now announced that the state will consider abandoning lethal injection altogether.
These developments mark the latest action taken by state officials in observance of pharmaceutical companies’ strong opposition to the misuse of their medicines in executions. Last year, Oklahoma officials abandoned lethal injection as a method after disclosing that they would have to obtain the drugs “illegally” in order to continue with the method. And in 2013, the governor of Missouri halted abandoned the use of propofol in executions following concerns by companies that the use of the drug in executions could result in shortages for patients.