The Oklahoma Supreme Court ruled today that a 2011 state law — now awaiting review by the Supreme Court — is so broad that it would outlaw all abortions done with medications, rather than surgery. The state court was answering two questions sent to it by the Justices last June, when they agreed to hear a case with state officials seeking to defend the law’s constitutionality (Cline v. Oklahoma Coalition for Reproductive Justice).

The Court, although accepting the case for review, had put its procedures on hold until after it had received the state court’s answers on the state law that regulates doctors’ use of the drug RU-486 to terminate a pregnancy or to treat an ectopic pregnancy — a condition that is potentially fatal to a pregnant woman.

What the Court now does with the Cline case is unclear at this point, but the options appear to include getting formal written reactions to the state court ruling from both sides. If the case now moves forward, it could be set for argument and decided in the current Term. One of the arguments that Oklahoma officials had made in seeking Supreme Court review was that there is a conflict between its own state court view of the RU-486 law and one by the Sixth Circuit Court upholding a similar Ohio law. The new ruling by the Oklahoma court may deepen that conflict.

The state supreme court had struck down the RU-486 restrictions in a brief opinion in December 2012, saying only that the law conflicts with Supreme Court rulings on a woman’s constitutional right to an abortion. State officials challenged that conclusion in their petition to the Justices last March, leading to the order granting review near the end of the last Term.

In interpreting the state law in its most sweeping potential, the state court said that it interferes with doctors’ medical judgment about using RU-486 in a way that is not formally approved, but is allowed, by the U.S. Food and Drug Administration. The state court said that doctors’ so-called “off-label” use of RU-486 — that is, in ways not specified in the FDA’s approved “protocol” — actually provides the safest and most effective way of medically inducing an abortion.

Professional medical organizations, the state court said, “have approved these alternative regimes as safer and more effective than the now-outdated regime provided” by the FDA-approved label. “Good medical practice and the best interests of the patient require that physicians use legally available drugs, biologics and devices according to their best knowledge and judgment,” the state court commented.

The FDA regime requires the use of larger doses of the drugs to induce abortions than the alternatives that doctors now prefer to use. Moreover, the FDA protocol only allowed the use of the drugs through the first seven weeks of pregnancy, while the alternative approaches allow it through the first nine weeks.

Under the FDA protocol, the patient would orally take 600 milligrams of the drug mifepristone (RU-486, or Mifeprex) at a health-care facility, come back to that facility two days later to receive a dose of misoprostol, and then, two weeks after that, go back to the facility so that the doctor could verify whether the procedure had worked as intended. This protocol can be pursued any time up through the forty-ninth day of pregnancy.

Under the alternative regime that FDA allows, even though it is not outlined on drug labels, the patient takes only one-third of the dosage of mifepristone, is allowed to take the second drug misoprostol on her own at home, and is permitted to pursue this method up through the sixty-third day of pregnancy.

Organizations and advocates who support this alternative approach have told the Supreme Court, in the Oklahoma case, that at least ninety-six percent of all medical abortions now involve a regime that is different from the FDA label’s regime. Those groups contend that the FDA approach is obsolete, as well as more expensive.

Recommended Citation: Lyle Denniston, Oklahoma anti-abortion law explained, SCOTUSblog (Oct. 29, 2013, 1:16 PM), https://www.scotusblog.com/2013/10/oklahoma-anti-abortion-law-explained/