Supreme Court lets stand Oklahoma court ruling against part of new abortion law
By Robert Barnes, Monday, November 4, 10:30 AM
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The Supreme Court decided Monday not to review a ruling by Oklahoma’s highest court that a major portion of the state’s restrictive abortion law is unconstitutional because it effectively bans all drug-induced abortions.

The justices had tentatively agreed in the summer to consider the issue but asked the Oklahoma Supreme Court for clarification on what the law proscribes. The Oklahoma court issued an opinion last week saying that the law would effectively end the early-term practice of drug-induced, nonsurgical abortions and was thus unconstitutional.

Upon receiving the Oklahoma opinion, the Supreme Court said it had decided against scheduling the case for briefing and arguments. As is customary, the justices gave no reason for deciding not to hear the case.

It seemed clear, however, that it is only a matter of time before challenges to a wave of abortion restrictions passed by the states reaches the justices. The court last ruled on abortion in 2007, when it upheld the federal Partial-Birth Abortion Ban Act. That decision has prompted some states to be bolder in restricting the procedure.

One such state is Texas, and Monday a coalition of health-care providers asked the high court to keep a portion of Texas’s new law from going into effect while it still can be challenged in lower courts.

At issue is a law requiring doctors who provide abortions to obtain admitting privileges at a local hospital. The requirement has meant that about a third of the clinics offering abortions in Texas have had to stop providing the procedure.

The U.S. Court of Appeals for the 5th Circuit said the law could go into effect while it was being challenged. The petition from the providers was addressed to Justice Antonin Scalia, who hears emergency matters from that circuit. He has called for a response from Texas by Nov. 12.

The restrictive Texas abortion law has roiled the state’s politics. It is being aggressively defended by Attorney General Greg Abbott (R), who is seeking the governorship. His likely Democratic opponent is state Sen. Wendy Davis, who became famous for filibustering the bill in June. It later passed in a special session of the legislature.

The Oklahoma law regarding drug-induced abortions is similar to those passed in Texas, Ohio and other states. They say doctors must follow the Food and Drug Administration’s regimen for the use of an “abortion-inducing drug” and forbids them from prescribing medications for “off-label use.”

Supporters of the law say the procedure protects women. But the Oklahoma court concluded that it effectively bans medication abortions, which are used early in pregnancies, because doctors over the past decade have found the FDA protocol to be excessive or outdated.

Only mifepristone, commonly referred to as RU-486, has been approved by the FDA for inducing abortions. But doctors in the past decade have used a second drug — misoprostol — in conjunction with mifepristone to complete the process.

A third drug, methotrexate, is commonly prescribed to terminate ectopic pregnancies, although the FDA has not approved its use.

The Oklahoma justices said that since mifepristone was approved by the FDA in 2000, doctors have found that only about a third of the labeled dosage is necessary. The state court said that 96 percent of medication abortions use the smaller dosage plus misoprostol, which can be taken at home instead of at a medical facility.

Those procedures cannot be used under the new law, the court said. Nor may methotrexate be used for ectopic pregnancies, it said.

Nancy Northup, president and chief executive of the Center for Reproductive Rights, welcomed the Supreme Court’s decision to let the Oklahoma court’s decision stand, saying the court “recognized this law for what it is, 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.

“Politicians have been pushing for these restrictions nationwide under the thin pretext of protecting women’s health, but their real agenda is to deny women their right to end a pregnancy safely, early and in consultation with their doctors,” Northup said.

Oklahoma Attorney General E. Scott Pruett (R) said the U.S. Supreme Court had “little choice but to dismiss the case” because of what he called the “overly broad and erroneous interpretation of the Oklahoma law” by the state court.

“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,” he said.

The issue of whether doctors must follow FDA labels might find its way back to the Supreme Court. A federal judge upheld Ohio’s restrictive law. And a judge in Texas recently took a middle ground, finding the restrictions in that state’s new law constitutional so long as there was an exception when the woman’s life or health is threatened.

The case at the Supreme Court was Cline v. Oklahoma Coalition for Reproductive Justice.

Cline v. Oklahoma Coalition for Reproductive Justice

12-1094 Ok. Not Argued Nov 4, 2013 TBD Per Curiam OT 2013

Issue: Whether the Oklahoma Supreme Court erred in holding – without analysis or discussion – that the Oklahoma law requiring that abortion-inducing drugs be administered according to the protocol described on the drugs’ FDA-approved labels is facially unconstitutional under Planned Parenthood v. Casey. Pursuant to the Revised Uniform Certification of Questions of Law Act, Okla. Stat., Tit. 20, §1601 et seq. (West 2002), respectfully certifies to the Supreme Court of Oklahoma the following question: Whether H.B. No. 1970, Section 1, Chapter 216, O.S.L. 2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies. Further proceedings in this case are reserved pending receipt of a response from the Supreme Court of Oklahoma.

Judgment: Dismissed as improvidently granted. in a per curiam opinion on November 4, 2013.

SCOTUS blog Coverage

•Court won't rule on RU-486 abortions
•New conflict on RU-486 abortions•Oklahoma anti-abortion law explained
•Cline symposium: Another correction of the abortion distortion coming?
•Cline symposium: Oklahoma law could force doctors to provide substandard medical care to women using medications to end a pregnancy
•Cline symposium: Do the right thing
•Cline symposium: Abortion, states' medical authority, and the "undue burden" test•Cline symposium: What justifies bad medicine?
•Cline v. Oklahoma Coalition for Reproductive Justice: Once more unto the breach
•Symposium announcement: Cline v. Oklahoma Coalition for Reproductive Justice•New test on abortion rights
•Petition of the day

Date Proceedings and Orders

Mar 4 2013 Petition for a writ of certiorari filed. (Response due April 8, 2013)
Mar 26 2013 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioner.
Apr 1 2013 Waiver of right of respondents Oklahoma Coalition for Reproductive Justice, et al. to respond filed.
Apr 5 2013 Brief amici curiae of Women and Families Hurt by RU-486 filed.
Apr 8 2013 Brief amici curiae of Family Research Council, and Alliance Defending Freedom filed.
Apr 8 2013 Brief amicus curiae of Eagle Forum Education & Legal Defense Fund, Inc. filed.
Apr 8 2013 Brief amicus curiae of Dr. John Thorp, M.D., et al. filed.
Apr 8 2013 Brief amici curiae of 79 Oklahoma Legislators filed.
Apr 16 2013 DISTRIBUTED for Conference of May 9, 2013.
Apr 22 2013 Response Requested . (Due May 22, 2013)
May 16 2013 Order extending time to file response to petition to and including May 28, 2013.
May 28 2013 Brief of respondents Oklahoma Coalition for Reproductive Justice, et al. in opposition filed.
Jun 3 2013 Reply of petitioners Terry Cline, et al. filed. (Distributed)
Jun 4 2013 DISTRIBUTED for Conference of June 20, 2013.
Jun 25 2013 DISTRIBUTED for Conference of June 26, 2013.
Jun 27 2013 Petition GRANTED. This Court, pursuant to the Revised Uniform Certification of Questions of Law Act, Okla. Stat., Tit. 20 Sec. 1601 et seq. (West 2002) respectfully certifies to the Supreme Court of Oklahoma the following question: Whether H. B. No. 1970, Section 1, Chapter 216, O.S.L. 2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat eptopic pregnancies. Further proceedings in this case are reserved pending receipt of a response from the Supreme Court of Oklahoma.
Oct 29 2013 Answer to certified questions filed.
Nov 4 2013 Writ of certiorari DISMISSED as improvidently granted.