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Oklahoma appeals on abortion

Oklahoma officials, arguing that their state supreme court is repeatedly blocking state laws that restrict access to abortions, have asked the Supreme Court to revive a law that confined the use of any drug that induces a medical abortion.  The officials filed a petition Monday in the case of Cline v. Oklahoma Coalition for Reproductive Justice. (A docket number has not yet been assigned.)

At issue is a state law passed in 2011 that specifies when and how a doctor may prescribe any abortion-inducing drug, including RU-486, for a pregnant woman.  The law was struck down last year by two Oklahoma state courts, most recently by the supreme court, on December 4.  (The state court decisions and the text of the state law are included as appendices to the petition.)

The state officials argued in their petition that the only purpose of the state law is to make sure that doctors do not provide such drugs to pregnant women in situations that do not follow exactly the limits specified by the federal Food and Drug Administration in approving prescription of the drugs.   Those limits provide that the drugs can be used up to forty-nine days (seven weeks) of pregnancy.  The petition contended that some doctors are providing it to patients whose pregnancy has continued for up to sixty-three days (nine weeks), and are prescribing it in higher doses than the FDA had approved..  Those “off-label” uses, the officials contended, are illegal.

The text of the law goes considerably beyond the provisions discussed in the petition, and the two state courts that ruled it unconstitutional did so on the premise that it interfered with a woman’s constitutional right to abortion as protected by Supreme Court decisions.

Officials contended that medical abortions are less safe for women than surgical abortions, and that, if the state law restricts the opportunity for medical abortion, a surgical abortion always remains as an option.

The Oklahoma law at issue was among scores of new laws being passed by state legislatures to curb access to abortion, but the Supreme Court has not yet been asked to review many of the decisions that have been issued, often against enforcement of the laws.   The Court, however, did refuse to hear, on October 29, another state petition seeking review of another Oklahoma law — a “personhood” amendment to the state constitution that would have barred all abortions by giving constitutional protection to a developing fetus from the moment of conception (Personhood Oklahoma v. Barber, docket 12-145).

In its new petition on the RU-486 law, the state cited three decisions by the state supreme court invalidating laws, including the personhood law and the RU-486 law.  Officials argued that the state court is nullifying state laws without engaging in significant analysis, in short opinions.  “The Oklahoma Supreme Court is consistently misapplying this Court’s abortion precedents,” the petition asserted.   It also argued that the decision on the RU-486 law conflicts directly with a ruling by the Sixth Circuit Court upholding a similar law enacted in Ohio.

The challengers to the Oklahoma RU-486 law will have a chance to respond to the petition before the Supreme Court acts on it in coming weeks.

(Thanks to Howard Bashman of the How Appealing blog for the alert to this petition.)

Recommended Citation: Lyle Denniston, Oklahoma appeals on abortion, SCOTUSblog (Mar. 6, 2013, 4:02 PM),