The Oklahoma Supreme Court said a state law would in effect ban pill-induced abortions, issuing an opinion that might scuttle a planned U.S. Supreme Court showdown.
Responding to a request from the nation’s highest court, the Oklahoma court today said the 2011 measure was a broad one that “effectively bans all medication abortions.” The state court had previously declared the law unconstitutional in a three-paragraph ruling that didn’t address the breadth of the statute.
The U.S. Supreme Court now must decide whether to hear arguments in the case or dismiss it. Although the justices said in June they would consider the state’s appeal, they put the dispute on hold until the Oklahoma court acted.
The dispute tests what has become a favored approach of anti-abortion groups and lawmakers: requiring doctors to follow Food and Drug Administration instructions in dispensing abortion-inducing drugs. Abortion-rights advocates say that the FDA-approved protocols no longer represent the safest approach and that doctors must be able to prescribe drugs “off label.”
Abortion-inducing pills have transformed the procedure -- and the debate -- since their approval in the U.S. more than a decade ago. Instead of visiting a clinic, which may be blockaded and tightly regulated, a woman early in her pregnancy can start an abortion at her physician’s office with a pill and finish the process at home. To anti-abortion forces, the drugs are seen as vehicles for the procedure to become more widely available.
The central question for the Oklahoma Supreme Court was whether the state measure would bar doctors from using misoprostol, an ulcer drug, because it hadn’t been approved by the FDA for abortions.
Oklahoma officials urged the court to say that the statute didn’t cover misoprostol. That interpretation might have increased the chances that the U.S. Supreme Court would uphold the measure.
The Oklahoma court instead said the “plain language” of the law indicated it covered misoprostol, barring its use in abortion. The court said doctors need the freedom to prescribe off-label uses.
“Human progress is not static,” the Oklahoma court said in its unsigned opinion. “Medical research and advances do not stop upon a particular drug’s approval by the FDA.”
Doctors use misoprostol alongside a second drug, mifepristone, which also would be affected by the Oklahoma law. Doctors now typically use only a third of the mifepristone dosage approved by the FDA in 2000 and prescribe it as long as nine weeks into pregnancy, two weeks longer than what the FDA originally approved.
New York-based Danco Laboratories LLC makes mifepristone, selling it under the name Mifeprex. Pfizer Inc. (PFE:US) sells misoprostol under the name Cytotec.
The Oklahoma court also said the statute would bar the use of a third drug, methotrexate, in treating ectopic pregnancies.
Abortion-rights advocates said the decision boded well for their position as the focus turns to the U.S. Supreme Court.
“We are confident that the nation’s highest court will respect the constitutional rights of women and 40 years of precedent by allowing the state court’s decision to strike down this cruel ban on medication abortion to stand,” said Nancy Northup, president of the Center for Reproductive Rights, which sued to challenge the Oklahoma law.
Oklahoma Attorney General E. Scott Pruitt said the state court “erred yet again by interpreting the law more broadly than the legislature intended.” He said the state would “enforce the law as written and continue to fight for improved care that protects Oklahoma women from harmful outcomes.”
Drugs have increasingly replaced surgical abortions. Abortion providers say the method enables women to terminate pregnancies earlier, which research shows is safer.
When it struck down the law last year, the Oklahoma court pointed to the U.S. Supreme Court’s 1992 decision, Planned Parenthood v. Casey. In that case, the court said states can’t place an “undue burden” on a woman’s right to end a pregnancy before the fetus would be able to live outside the womb.
The case is Cline v. Oklahoma Coalition for Reproductive Justice, 12-1094.
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