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Supreme Court lets stand Oklahoma abortion ruling

Published November 4, 2013 7:48 pm

Justice • State court rules the new law, banning all medication abortions, is unconstitutional.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Washington • The Supreme Court left in place Monday a decision by Oklahoma's highest court that a major provision of that state's new abortion law is unconstitutional because it effectively bans all medication abortions.

The high court last summer had tentatively agreed to consider the issue but asked the Oklahoma Supreme Court for clarification on exactly what the law bans. The Oklahoma court issued an opinion last week that the law would effectively end the early-term practice of medication-induced abortions and was thus unconstitutional.

Upon receiving the Oklahoma opinion, the Supreme Court announced Monday that it will not schedule the case for briefing and consideration. As is customary, the justices gave no reason for deciding not to hear the case.

It is clear, however, that there are other ways for the issue to reach the Supreme Court. A number of states have passed similar restrictions on medication abortions, and the issue is working its way through the courts.

A federal judge upheld Ohio's restrictive law. And a judge in Texas recently took a middle ground, finding the restrictions in the state's new law constitutional so long as there was an exception when the woman's life or health is threatened.

A group of health-care providers announced Monday that it will ask the Supreme Court to stop another component of the Texas law that requires doctors who provide abortions to obtain admitting privileges at a local hospital. The requirement has meant that about a third of 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 health-care providers are asking the Supreme Court stop the law while challenges go forward. Their petition is addressed to Justice Antonin Scalia, who hears emergency matters from that circuit. He has called for a response from the state of Texas by Nov. 12.

The new laws regarding medication abortions follow a similar pattern. 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 abortion. But doctors in the past decade have used a second drug — misoprostol — in conjunction with mifepristone to complete the process. In addition, a third drug, methotrexate, is commonly prescribed to terminate ectopic pregnancies, although the FDA has not approved its use.

The Oklahoma justices said medical practice since mifepristone was approved by the FDA in 2000 shows that only about a third of the labeled dosage is necessary. It 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.

The Oklahoma court endorsed a district judge's decision that the restrictions under the law were "so completely at odds with the standard that governs the practice of medicine" that the legislature's only objective was to keep women from obtaining abortions.