Oklahoma abortion ruling sets stage for US Supreme Court to step in

One day after a federal judge upheld restrictions in Texas on chemically induced abortions, the state Supreme Court in neighboring Oklahoma denounced a similar measure as an unconstitutional ban on that type of abortion.

Tuesday’s 26-page decision by the high court in Oklahoma came at the request of the US Supreme Court, which is considering whether to examine the constitutionality of a new crop of state laws that restrict chemical abortions. State lawmakers who oppose abortion have pushed such measures in an effort to make it more difficult for women to obtain certain kinds of abortions and for physicians to administer them.

The stage is now set for the justices in Washington to decide whether they want to examine the constitutionality of state restrictions on protocols used to administer chemically induced abortions.

The justices agreed in late June to take up an appeal examining an Oklahoma law restricting abortions. But the court said it first wanted the Oklahoma Supreme Court to provide a more detailed explanation of its opinion striking down the state law as unconstitutional.

More specifically, the justices wanted to know whether the Oklahoma law would prohibit two drugs commonly used to perform chemical abortions or used to treat certain problem pregnancies.

In a 7-to-0 opinion, the Oklahoma Supreme Court answered that the Oklahoma law, known as HB 1970, bars any use of the two drugs and would end the use of chemically induced abortions in Oklahoma.

“HB 1970 effectively bans all medication abortions,” the Oklahoma court concluded.

At issue in the underlying case, Terry Cline v. Oklahoma Coalition for Reproductive Justice (12-1094), is whether the restrictive Oklahoma law is a permissible state regulation of abortion or whether it crosses the line to present an undue burden on a woman’s right to terminate her pregnancy.

HB 1970 requires abortion providers to rely exclusively on medical protocols and dosages set by the US Food and Drug Administration in 2000 when the FDA first approved the use of the drug RU-486 for drug-induced abortions.

A group of abortion providers filed suit in state court, arguing that the restrictions go too far. They said that since the FDA approval of chemical abortion in 2000, physicians had developed a number of efficiencies and improvements over the FDA-approved protocols.

They said that such innovation was common in the medical community and that the FDA did not restrict the use of approved drugs in non-FDA-approved protocols deemed safer and more effective by treating physicians.

A state judge agreed and declared the law unconstitutional. The Oklahoma Supreme Court upheld that decision, citing US Supreme Court precedents preventing excessive state regulation that would violate a woman’s right to obtain an abortion.

In its clarifying decision on Tuesday, the Oklahoma high court said the state legislature intentionally included a broad definition of drugs that would be barred from use without FDA approval.

Contrary to the actions of lawmakers, the justices said, the FDA approval process was not designed to hinder or prevent medical innovation.

“FDA-approved labeling is not intended to limit or interfere with the practice of medicine nor to preclude physicians from using their best judgment in the interest of the patient,” the court said.

“Medical research and advances do not stop upon a particular drug’s approval by the FDA,” the court added.

The court repeated a statistic offered in briefs filed by abortion providers: Some 96 percent of all chemically induced abortions in the US follow protocols different than those contained in the FDA’s 2000 approval.

In addition, the court said, “Both the American College of Obstetricians and Gynecologists and the World Health Organization have endorsed these alternate regimens as safer and more effective than the now-outdated regimen provided for in [the 2000] FDA-approved label.”

Abortion providers in Oklahoma are represented in the case by lawyers with the Center for Reproductive Rights.

CRR President Nancy Northup praised the Oklahoma court’s opinion as a strong reaffirmation of the conclusion that the state law was designed to “rob women of a safe, legal, and effective option of [using] medication to end a pregnancy at its earliest stages.”

“In passing this law, politicians cast aside women’s constitutional rights along with years of research, evidence-based medicine, and doctors’ practical experience,” Ms. Northup said in a statement.

“Physicians know better than politicians what’s right for their patients,” she said, “and medical decisions should be made according to their advice and expertise, not any politician’s ideological agenda to ban abortion.”

The action in the Oklahoma case came a day after a federal judge in Texas upheld a portion of a new abortion law in that state enforcing a similar restriction on chemically induced abortions. The statute requires abortion providers in Texas to follow the FDA-approved protocol rather than newer, more effective, and safer protocols established since the 2000 FDA approval.

The judge said that even though the old protocol was “more imposing and unpleasant for women,” the law requiring its use did not rise to the level of creating an unconstitutional burden on the right to an abortion.

The judge in the Texas case said that a subset of women could continue to use the newer protocol for induced abortions, but only those who would face a significant health risk from a surgical abortion.