Priscilla (Cilla) Smith is a Senior Fellow at the Information Society Project at the Yale Law School. Prior to joining the ISP, Smith was an attorney with the Center for Reproductive Rights for thirteen years, serving as the U.S. Legal Program Director from 2003-2007, and litigated cases nationwide, including Gonzales v. Carhart.
The Supreme Court’s recent decision to grant certiorari and certify questions to the Oklahoma Supreme Court in Cline v. Oklahoma Coalition for Reproductive Justice, has sounded alarm bells among advocates for reproductive rights. Concern is especially understandable this year because the past three years have seen a record number of new abortion restrictions.
There is a growing sense that the constitutional right to choose is once again under siege. The murder of a prominent abortion provider, Dr. George Tiller, in 2009, and a recent report from a Huffington Post survey indicating that more than fifty abortion clinics have closed or stopped performing abortions since 2010 contribute to this growing disquiet.
While the Supreme Court is of course permitted to revisit its precedents where they have proven unworkable, their jurisprudential foundations have been eroded, and society’s reliance on the precedent is not so great that overturning the prior rule would cause special hardship, if the Court were simply to follow established law, the outcome in Cline would seem to be foreordained. The Court’s most recent ruling on abortion, 2007’s Gonzales v. Carhart, and its decision earlier this summer in United States v. Windsor (striking down the Defense of Marriage Act), both strongly indicate that the statute at issue in Cline – even if it were to receive a narrowing construction – is inconsistent with the rights to liberty and equal protection promised by the Fourteenth Amendment.
Cline involves a challenge to an Oklahoma statute that regulates the use of medication to perform abortions in the first nine weeks of pregnancy. Abortion using medications is a safe and effective alternative to surgical abortion that has been chosen by one out of four U.S. women who have been presented with both alternatives.
One of the drugs at issue is mifepristone, previously known as RU-486. Anti-abortion advocates have a long history of working to prevent American women from using mifepristone to obtain early medical abortions. The medication has been in general use in Europe since the 1980s. By the early 1990s it was already recognized to have had “extraordinary success in achieving complete abortion . . . [while posing] acceptable health risks” in early pregnancies. Despite its proven health benefits, the Reagan administration issued a specific ban on importation of mifepristone to prevent the drug’s use here in the U.S., and anti-abortion advocacy slowed down the process of obtaining FDA approval for the marketing of the drug here in the U.S. Approval was finally obtained in 2000.
The law struck down by the Oklahoma Supreme Court in Cline regulates all “abortion-inducing drugs,” specifically naming three: mifepristone (“mife/RU-486”); misoprostol, which is used in combination with mife/RU-486; and methotrexate, a drug used alone in place of mifepristone to treat ectopic pregnancies.
The Supreme Court certified the question in Cline to the Supreme Court of Oklahoma because the meaning of the law is contested. According to the plaintiffs, the statute imposes a complete ban on early medical abortions, and a complete ban on the use of methotrexate to save a woman’s fallopian tube in an ectopic pregnancy. According to Oklahoma, the law “merely” limits women to using mifepristone according to the regimen described on the original label approved for marketing purposes.
I place “merely” in quotes because the protocol is profoundly out of date, so outdated that nationwide, at least ninety-six percent of all medication abortions now involve an evidence-based regimen that departs from the mifepristone label. In other words, even if Oklahoma’s interpretation of the statute were upheld, it would require physicians to prescribe incorrect dosages of mifepristone and misoprostol, dosages that have been proven in clinical trials to increase complication rates and reduce effectiveness significantly.
There is strong reason to think that the Oklahoma Supreme Court will not adopt the narrowing construction proffered by the state of Oklahoma. Indeed, if the Oklahoma Supreme Court responds that this law bans all medical abortions, then the Court will likely either affirm the lower court or dismiss the case as improvidently granted (as it should). What is distressing about Cline is that even the narrowing construction Oklahoma seeks – which would allow some medical abortions, but prevents physicians providing abortions from updating dosing regimens to comport with evidence developed through clinical trials concerning the safety and efficacy of said regimens – is deeply inconsistent with the Court’s holdings in Carhart and Windsor. Should the Oklahoma Supreme Court adopt the state’s proffered limited construction – only allowing the use of outdated medical protocols – the question of what conceivable purpose the restriction could serve would be before the Supreme Court.
In Casey, the Court held that a statute’s purposes are central to analysis of its constitutionality in the abortion context. The spousal notification provision at issue there was struck down both because “in a large fraction of the cases in which [it was] relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion,” but also because it had an invalid purpose, “embody[ing] a view of marriage consonant with the common-law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution.” Notably, in Carhart, while upholding a ban on a narrow category of second trimester surgical abortions, the Court was careful to examine the validity of state interests under the “purpose prong” of the Casey undue burden standard, even where the plaintiffs had not made a purpose prong claim. The Court’s recent decision striking down the federal Defense of Marriage Act (DOMA) has further anchored purpose analysis to judicial review of government infringements on the right to liberty. After a careful examination of the claimed state interests supporting DOMA, the Court found that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
The lower courts, for their part, saw the law in Cline as plainly unconstitutional under Casey and Carhart and correctly decided the case by evaluating the law under the “purpose prong.” The lower court found that none of the valid state interests served by the regulations upheld in Casey and Carhart were served by the law in Cline. Instead, using language foreshadowing that used by the Court in Windsor, the trial court held that the Oklahoma law “is 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 who do.”
Cline raises issues deeply consonant with those raised in Casey and Windsor. For the Oklahoma law to stand, anti-abortion advocates would be required to locate a permissible state purpose for the law. They have two avenues at their disposal. First, they would argue that banning updated dosing regimens for medical abortion serves the state’s interest in women’s health (a contention that one commentator politely referred to as “hogwash.”). The only other option they have is to argue that limiting doctors to using outdated dosing requirements serves the state’s interest in protecting the sanctity of an unborn life or supports a state interest in the integrity of the medical profession, one of the successful arguments made in Carhart.
While these two arguments by anti-abortion advocates loom over every case challenging the abortion right, should the Court faithfully apply the purpose analysis as it has emerged in Casey, Carhart, and Windsor, there is no doubt how Cline should come out. Indeed, Oklahoma has never claimed the law serves the interest in potential life or the integrity of the medical profession. After all, if anything, requiring outdated and less effective dosing requirements disserves the state’s valid interest in potential life by causing more abortions to occur later in pregnancy. It also undermines the integrity of the medical profession. Forcing doctors to use outdated dosing regimens that increase side effects like pain and bleeding, and reduce the effectiveness of the medications, requires them to ignore their ethical duty to provide care in the best interest of their patients. This puts doctors in an untenable bind that should be found to effectively prevent doctors from performing these procedures. As the trial court found, “good medical practice and the best interests of the patient often includes drug use that is not displayed in the [drug’s label], and requires physicians use legally available drugs according to their best knowledge and judgment.”
Women obtaining constitutionally protected abortions are protected “in personhood and dignity” by their equal constitutional liberty right no less than same-sex couples granted the right to marry under state law. These women, who rely on the right to abortion over the course of their reproductive lives to achieve a semblance of social equality, deserve a similarly exacting analysis of the validity of the state’s regulatory purpose in restricting their liberty than was granted same-sex couples in Windsor. While states have some valid interests in regulating abortion, including an interest in potential life, the Court must insure that the means chosen to further the state’s interests “must be calculated to inform the woman’s free choice, not hinder it.” Because Oklahoma’s law reflects only a bare desire to make medical abortions more dangerous, painful, and less effective, and to prevent physicians who provide abortions to provide the best medical care available to their patients, the lower court’s ruling should be summarily affirmed, or at least allowed to stand.