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Court passes up RU-486 abortion issue, again

The Supreme Court chose again today to bypass a dispute over state authority to strictly limit the access of pregnant women to abortion procedures that use drugs instead of surgery.  This time, the Court declined to review a case from Arizona — a state where nearly half of all abortions have been performed without surgery (Humble v. Planned Parenthood Arizona).   Last Term the Court dismissed a similar case that was an appeal from Oklahoma.

The Court did not grant review of any new cases.  It sent a case to the Justice Department for the government’s views, on the power of states to require health insurance companies and hospitals, clinics, and doctors to report data about insurance claims.  The issue in Gobeille v. Liberty Mutual Insurance Co. is whether such a state requirement is barred by federal employee benefit law, the Employment Retirement Income Security Act of 1974 (ERISA).  The U.S. Court of Appeals for the Second Circuit ruled that ERISA bars such laws.

Across the country, an increasing number of women seeking to end their pregnancies are opting for a two-drug protocol, which is less expensive and less invasive than surgery and, under the most common practice, requires only one visit to a doctor or clinic to take one of the drugs under supervision; in addition, the protocol can be used later in pregnancy.  The first drug is mifepristone (popularly known as RU-486), which ends the pregnancy by causing the fertilized egg to detach from the uterine wall.  The second drug, misoprostol, causes the uterus to expel its contents.

As that method has grown in popularity, several state legislatures that seek to curb abortions generally have passed laws limiting the protocol that may be used for medically inducing an abortion.  It limits the use of the drugs to the method that has been specifically approved by the federal Food and Drug Administration.  But supporters of women’s abortion rights say that this approach has the practical effect of forbidding all medical abortions, because the FDA has not approved the use of the second drug — misoprostol — for ending pregnancy.  It is not uncommon, in medical practice, for doctors to use drugs in ways not specifically endorsed by the FDA — known as the so-called “off-label” uses.

In June 2013, the Supreme Court had initially voted to review an Oklahoma law curbing RU-486 abortions, but it later wound up dismissing that case after the Oklahoma Supreme Court — asked by the Court for its views — explained that the law was so broad that it banned virtually all medical abortions.

In the new appeal by Arizona officials, they sought to steer the Court await from the validity of the medical abortion method, focusing instead on the constitutional test that courts should use to judge the constitutionality of abortion laws in general.  The state’s petition argued that the U.S. Court of Appeals for the Ninth Circuit has adopted a new standard of review for abortion restrictions that conflicts with the approaches taken by two other federal appeals courts.

The challengers to the Arizona law argued that the Supreme Court should not step in now to review the Arizona case, because the Ninth Circuit’s ruling was not a final one, and more processes will be unfolding in a federal trial court in Arizona.

The Court declined review without giving any reasons, and there were no noted dissents from that order by any Justice.








Recommended Citation: Lyle Denniston, Court passes up RU-486 abortion issue, again, SCOTUSblog (Dec. 15, 2014, 12:12 PM),