Bloomberg News

Abortion Case Dropped as U.S. High Court Leaves Law Voided (2)

November 04, 2013

Abortion Demonstration

A pro-life activist stands in front of pro-choice activists outside the U.S. Supreme Court in Washington, D.C. Photographer: Brendan Hoffman/Getty Images

The U.S. Supreme Court dismissed what would have been its first abortion showdown since 2007, backing out of a clash over an Oklahoma law that sought to restrict drug-induced procedures.

Today’s action leaves intact an Oklahoma Supreme Court decision that struck down the 2011 law on the grounds it put an unconstitutional burden on women seeking an abortion.

The high court will have other chances to consider abortion limits in the coming months. Abortion-rights advocates today asked Justice Antonin Scalia to block enforcement of a Texas law requiring doctors who perform the procedure to have local hospital admission privileges.

In the Oklahoma case, the Supreme Court in June took the unusual step of saying it would review the dispute while simultaneously asking the state’s highest court to clarify what the law covered. The Oklahoma court responded on Oct. 29 by saying the measure “effectively bans all medication abortions.”

The U.S. Supreme Court then reassessed its involvement and today said, in a one-sentence order, that it wouldn’t hear the case after all.

The Oklahoma dispute tested 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 Abortion-rights advocates say the FDA-approved protocols no longer represent the safest approach and that doctors must be able to prescribe drugs “off label.”

‘Outright Ban’

“The Supreme Court has let stand a strong decision by the Oklahoma Supreme Court that recognized this law for what it is,” said Nancy Northup, president of the Center for Reproductive Rights, which sued to challenge the Oklahoma rules. The law was “an outright ban on a safe method of ending a pregnancy in its earliest stages and an unconstitutional attack on women’s health and rights.”

Abortion-inducing pills have transformed the procedure -- and the debate -- since their approval in the U.S. more than a decade ago. Rather than visiting a clinic, which can be subject to protests and tight regulations, a woman early in her pregnancy can start an abortion by taking a pill at her doctor’s office and finish the process at home. Anti-abortion forces see the drugs as vehicles for making the procedure more widely available.

FDA Approval

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 language of the law indicated it covered misoprostol, barring its use in abortion.

“Given the Oklahoma Supreme Court’s overly broad and erroneous interpretation of the Oklahoma law, the U.S. Supreme Court had little choice but to dismiss the case,” Oklahoma Attorney General Scott Pruitt said in a statement today. “We are disappointed with the state court’s interpretation of a law that was crafted by the legislature to protect Oklahoma women from potentially deadly protocols that have never been approved by the FDA.”

Ectopic Pregnancies

The Oklahoma court also said the statute would bar the use of another drug, methotrexate, in treating ectopic pregnancies.

Doctors use misoprostol alongside another drug, mifepristone, which also would have been 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.

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.

Texas Case

In the Texas case, the 5th U.S. Circuit Court of Appeals said last week that the state’s law could go into effect even though a trial judge had concluded it was unconstitutional. The appeals court ruling prompted women’s clinics in five cities to stop providing abortions.

Planned Parenthood today told the nation’s highest court that the law “would have an unprecedented and devastating effect on women’s ability to obtain an abortion.”

Scalia, who handles emergency matters from the New Orleans-based appeals court, told state officials to respond to today’s filing by Nov. 12. At that point, Scalia can either act on the Planned Parenthood request himself or refer the matter to the full nine-member court.

The case doesn’t ask the court to directly rule on the Texas law, instead arguing that the 5th Circuit was wrong to let the measure take effect while the state’s appeal was pending.

Separately, Arizona is asking the justices to revive a law that bars abortion at 20 weeks or later in pregnancy. That appeal asks the court to revisit part of the landmark 1973 Roe v. Wade ruling, which legalized the procedure nationwide.

The Oklahoma case is Cline v. Oklahoma Coalition for Reproductive Justice, 12-1094. The Texas case is Planned Parenthood v. Abbott, 13A452.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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