O. Carter Snead is the William P. and Hazel B. Director, Center for Ethics and Culture and a Professor of Law at University of Notre Dame.
In one sense, Cline v. Oklahoma Coalition for Reproductive Justice promises to mark a new chapter in the U.S. Supreme Court’s now-forty-year-old project of regulating the practice of abortion in America. The Court has never before evaluated a legal restriction on the so-called “abortion pill.” At the same time, the case presents essentially the same doctrinal issue that was addressed by the Court in Gonzales v. Carhart (2007). Whereas Gonzales dealt with the federal government’s efforts to restrict one particularly grisly and controversial method of abortion typically performed later in pregnancy (intact dilation and extraction, also known as partial-birth abortion), Cline involves an Oklahoma law restricting the prescription of abortion-inducing drugs (given early in pregnancy) to the protocol authorized by the FDA’s final printed label. Despite these minor differences of context, Cline can be resolved squarely within the principles set forth by Justice Kennedy in Gonzales.
In Gonzales, the Court upheld the Partial Birth Abortion Ban Act of 2003, despite the fact that the law prohibited entirely the use of a specific abortion procedure throughout every stage of pregnancy, based on the federal government’s interests in promoting respect for unborn life, preserving the integrity of the medical profession, and preventing a coarsening of the polity’s moral sense. In affirming the ban, the Court made clear that even in the vexed matter of abortion, “[w]here the state has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession.” The law did not impose an “undue burden” on women seeking abortions (the current standard for evaluating abortion regulations that apply before fetal viability) because it did not limit access to other commonly used methods of abortion deemed safe by practitioners. For the same reason, it was not fatal to the bill that the law lacked a “health exception” to the general prohibition on partial birth abortions. To be sure, abortion rights advocates and their sympathetic medical experts objected that there were imaginable circumstances in which partial-birth abortion might be the safest option, and thus the ban was dangerous for women’s health. Medical and scientific experts defending the bill disagreed with this speculative assessment. The Court concluded that even in the face of such uncertainty and disagreement among experts, state and federal governments retain wide discretion to pass legislation regulating the practice of medicine, including laws that override the preferences of abortion providers (and, by extension, their patients) and direct them to use a “reasonable alternative procedure” instead of their favored option.
Cline presents the same type of dispute, in virtually identical form. In 2000, the FDA approved the drug Mifeprex (also known as mifepristone or RU-486) for the termination of pregnancy. The FDA approved Mifeprex pursuant to its special regulatory authority to “fast track” certain drugs to market – a process usually reserved for medicines that treat life-threatening conditions, such as cancer or AIDS. In order to ensure safe use under the expedited approval process, the FDA imposed restrictions on the use of Mifeprex. Among other things, the final printed label for Mifeprex limits its use to the first forty-nine days of gestation, and prescribes a variety of conditions both regarding qualifications for prescribing physicians and the process for administering the drug to patients. In the years that have followed, as is often the case, abortion practitioners have developed “off-label” protocols that are different from that provided in the FDA’s final printed label. These new regimens use different dosages, and have extended the usage of the drug to sixty-three days post-fertilization.
In 2011, the state of Oklahoma moved to restrict the use of abortion-inducing drugs to the FDA protocol, out of concerns for women’s safety, including especially for risks associated with hemorrhaging and retained tissue (in case of incomplete expulsion of the now-deceased unborn child). By that time there had been eight deaths from sepsis during Mifeprex use – none of which involved the FDA protocol.
Abortion rights advocates and practitioners responded that this law was medically unjustified and unduly burdened women’s range of choices for abortion. Supporters of the Oklahoma law argued in response that the law is rooted in a legitimate state interest (safeguarding women’s health), supported by sufficient (if disputed) medical and scientific evidence. Moreover, they argued that the law does not amount to an “undue” or unsafe burden on women seeking abortion. The concrete effect of the law is to limit drug-induced abortion to the first forty-nine days of gestation, using the FDA protocol – a regimen that the American College of Obstetricians and Gynecologists (ACOG) declares “safe and effective” for this stage of pregnancy.
From fifty to sixty-three days’ gestation, women in Oklahoma have an alternative to drug-induced abortions deemed very safe by practitioners – namely, surgical abortion. Supporters of the law cited peer-reviewed studies suggesting that surgical abortion is safer than drug-induced abortion, because of lower risks hemorrhaging and incomplete abortion (requiring additional surgical intervention). They also cite expert evidence that drug-induced abortion could be riskier for women whose health might be endangered by surgical abortion (given concerns about hemorrhaging and retained tissue). Most strikingly, even abortion rights supporters and their experts have recently argued vigorously in the Texas state legislature that surgical abortion is so safe that it need not be performed in ambulatory surgery centers. And in California, abortion rights supporters recently celebrated passage of a law allowing non-physicians to perform surgical abortions. Accordingly, supporters of the bill argue that restricting the use of abortion-inducing drugs to just over twelve weeks’ gestation does not materially restrict women’s choice for abortion, nor does it impose any risks to their health.
The parallels between Cline and Gonzales are striking. In both cases, the government moved to limit a particular form of abortion in the name of pursuing some other important good, based on substantial (but contested) evidence. In both cases, the restrictions left women free to seek other common modes of abortion regarded as extremely safe by practitioners. That is, both laws channeled abortion providers and their patients towards a “reasonable alternative option.”
The Oklahoma Supreme Court declared the law invalid in an undertheorized, conclusory, and strikingly spare opinion. It merely asserted, without discussion, that the law ran afoul of Casey and thus could not stand. This explanatory minimalism and shifting of responsibility to U.S. Supreme Court precedent may reflect a survival strategy on the part of the Oklahoma justices (eight of nine of whom were appointed by governors who supported abortion rights) who must stand for regular statewide retention votes in a state whose electorate appears to care very deeply for the unborn. But even so, it is clear that the Oklahoma Court’s opinion was not faithful to Gonzales – an opinion that it does not even cite, despite the obvious similarities.
The U.S. Supreme Court has certified two questions to the Oklahoma Supreme Court regarding the scope of the law, namely, whether it bans the use of misoprostol (a drug specifically mentioned in the FDA protocol that the statute incorporates) and whether it forbids the use of drugs to treat ectopic pregnancies (a procedure that is excluded from the definition of “abortion” under Oklahoma law). Contrary to the assertions of opponents of the law, only the most implausible and tortured reading of the challenged statute could yield a positive answer to either question. It is difficult to imagine that the Oklahoma Supreme Court would adopt such a strained construction.
Assuming that the Oklahoma Court adopts the most reasonable interpretation of the challenged law, and assuming further that the U.S. Supreme Court decides Cline on the merits, a straightforward application of Gonzales would require reversal. Oklahoma, like any state, is entitled to regulate the practice of medicine — including abortion — for the purpose of safeguarding the health of the people within its borders. This is a fortiori true when the state legislature’s judgment is supported by substantial (albeit contested) medical authority — including the research relied on by the FDA in the first instance. The case for sustaining the law is clearer still where, as here, its effect is merely to close a two-week window (fifty to sixty-three days’ gestation) during which abortion-inducing drugs may be used, and equally safe (arguably safer) options are available. Failure to reverse the Oklahoma Supreme Court here would reinstate the “abortionist’s veto” that Justice Kennedy rightly rejected in Gonzales and constrict the state’s authority to pursue laws meant to promote the health and welfare of its people.