The Supreme Court's Next Big Abortion Decision

The high court has agreed to review an Oklahoma law restricting medication abortions.

| Fri Jul. 19, 2013 6:00 AM EDT

Roe v. Wade, watch out. The Supreme Court will venture into the abortion debate later this year when it considers the constitutionality of an Oklahoma law restricting the use of oral medications for abortions. The case could have major implications for the 16 states that have passed laws limiting the use of drugs that induce abortions.

Oklahoma's governor signed the state's medicine abortion law in May 2011, putting in place new restrictions on the use of RU-486 (also known as mifepristone or Mifeprex) and any other "abortion-inducing drug." The law mandates that doctors follow the exact protocols for the drugs that are described on the Food and Drug Administration-approved label. Off-label use of drugs is legal and fairly common, and in the years since the drug was first approved for use in 2000, doctors have found that RU-486 and other drugs can be effective at lower doses and can be done with fewer visits to the doctor's office than outlined on the FDA label. Doctors have also found that RU-486 is effective up to nine weeks into a pregnancy, not the seven weeks for which it was originally approved. Oklahoma's law bans doctors from using that new knowledge to help their patients.

After Oklahoma's governor signed the law, the Oklahoma Coalition for Reproductive Justice and the Center for Reproductive Rights sued—and won. A trial judge struck down the law in May 2012. When Oklahoma appealed to the state Supreme Court, it lost again. The state then appealed to the US Supreme Court, which indicated in June that it would consider the case. Reproductive rights groups say Oklahoma's law—and similar ones in other states—are a transparent attempt to limit access to medication abortions. The groups argue that the new laws would make medicine-induced abortions virtually inaccessible, since the drugs are so frequently used off-label. "What this law will do is deny women the benefits of nonsurgical options for terminating a pregnancy," says Julie Rikelman, the director of litigation at the Center for Reproductive Rights. "We think it's an extreme law."

In ruling that the law was unconstitutional, the trial court judge stated that it was "so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those women who do." Now reproductive rights groups are hoping the Supreme Court will agree with the lower court's ruling. There's a problem, though: Most reproductive rights advocates believed that the justices would not take up the Oklahoma case at all, since the state Supreme Court had already agreed with the lower court.

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"All of this is making abortion rights advocates nervous, because the restriction was struck down, and to revisit it brings into question what might be permissible around medication abortion restrictions," says Elizabeth Nash, state issues manager at the Guttmacher Institute, a reproductive rights nonprofit.

Part of what has abortion rights advocates worried is that 15 other states have also passed laws restricting medication abortions in the last few years. If the Supreme Court decides Oklahoma's law is okay, the other states' laws will likely pass constitutional muster, too. On Thursday, Texas became the latest state to limit medicine-induced abortions when Gov. Rick Perry signed a giant abortion bill into law. North Dakota's law is very similar to Oklahoma's, and that was struck down by a judge on Monday. Most of those laws, including Oklahoma's, are based on model legislation from Americans United for Life, an important legal arm of the anti-abortion movement. The group praised the US Supreme Court's decision to review the case as "historic".

Medication abortions have become increasingly common since the FDA first approved RU-486 13 years ago. Guttmacher has found that 17 percent of abortions in the United States are medication-induced abortions. This type of abortion is an alternative to more invasive surgical abortions, and it can increase access to abortions in states that have passed strict, new regulations on surgical abortions. It also affects the drug methotrexate, which doctors often prescribe to terminate ectopic pregnancies—which occur when a fertilized egg implants in a woman's fallopian tubes. Surgical abortion is more invasive and requires the woman to be put under general anesthesia.

"We think that doctors should be able to decide how to practice medicine," Rikelman says. "They're making it hard for women to access the services by making it hard for doctors to provide them."

In its June decision, the US Supreme Court asked the state court for more information about the case before it proceeds, which SCOTUSBlog reported is an "unusual" way to move forward. After the court produces that information, the justices could either decide not to hear the case after all, or they could move forward with oral arguments.

If the US Supreme Court eventually upholds the restrictions on abortion medications, it would be a big set back in Oklahoma, says Mallory Carlberg, a spokesperson for Oklahomans for Reproductive Justice. Oklahoma is a big, rural state with only two abortion providers—one in Norman and one in Tulsa—and women drive as much as four hours to see a provider. "I think it would hit low-income and rural people in the state the hardest," she says. "Already there are huge financial and geographic obstacles to obtain an abortion in the state. This would make it worse."

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