Oklahoma! Questions Answered – SCOTUS Repro Rights Case Case Can Proceed

Oklahoma Capitol Seal (2013) by mrlaugh on flickr at: www.flickr.com/photos/mrlaugh/9529159402/

Used under creative commons licence, copyright to image held by mrlaugh on flickr @ http://www.flickr.com/photos/mrlaugh/9529159402/

It’s been a busy week in the US for the law and women’s reproductive rights. Following yesterday’s Federal Court decision in Texas, this morning the Oklahoma Supreme Court has issued its answers to questions submitted to it from the US Supreme Court.

These questions form part of a case that has been appealed to the US Supreme Court from Oklahoma’s top court, Cline et al v Oklahoma Coalition for Reproductive Justice. The US Supreme Court paused hearing the proceedings until its questions had been answered by the Oklahoma Supreme Court.

In 2011, Oklahoma passed a law banning the off-label use of misoprostol (Cytotec), mifepristone (RU-486) and methotrexate, for the termination of a woman’s pregnancy (a more detailed description of off-label use of RU-486 is available in a previous post). The law did not ban off-label use of these drugs in other circumstances, reflecting that the purpose of the laws was to target abortion specifically and therefore denying women specifically the right to medical advances and scientific evidence in their medical care. This law was challenged by the Oklahoma Coalition for Reproductive Justice on the grounds that the law was in violation of the rights of women to equal protection of the laws, privacy, bodily integrity and freedom of speech as protected under the Oklahoma Constitution.

Prior to the law, Oklahoma did not differentiate between medication and surgical abortions. Similar to the case in Texas yesterday, the law required doctors to use the drugs only in accordance with the protocol set out by the US Food and Drug Administration. For a number of reasons, such protocols are not necessarily the most safe and effective uses of a medication, leading doctors to examine medical literature and scientific evidence for the best use of the medications, “off-label use”. Doing so is not illegal and is common practice in the United States allowing for best medical practice in the face of scientific advances. An example of such advances is medication abortions, which can be performed earlier in pregnancy than surgical abortions, is less invasive and more private. There are also a number of medical reasons why a medication abortion would be more advantageous than a surgical abortion for certain women.

According to the Plaintiffs’ petition to the Oklahoma County District Court in 2011, approximately 2/3 of patients having a first-trimester abortion choose medication abortions. Such abortions would have been banned under the effect of the Oklahoma law.

Events leading to Supreme Court

In December 2011, the Oklahoma County District Court issued a preliminary injunction preventing the enforcement of this new law. In May 2012, this was converted into a permanent injunction, recognising the rights to bodily integrity and the right to terminate a pregnancy as protected under the Oklahoma Constitution.  The Oklahoma Commissioner of health, Terry Cline, and others, appealed the decision to the Oklahoma Supreme Court. In December 2012, the Court upheld the District Court’s decision, finding that the law was unconstitutional. In March of this year, the Oklahoma Attorney General filed a petition for certiorari with the US Supreme Court, seeking judicial review of the Oklahoma Supreme Court’s ruling.

The US Supreme Court allowed the petition, meaning that it would hear the case and conduct a judicial review of the Oklahoma Court’s ruling, however before doing so, required that two questions of law must be answered by the Oklahoma Supreme Court.

Question 1: Does the law prohibit the use of misoprostol to induce abortions, including its use in conjunction with RU486 according to an FDA protocol?

That is, are the methods of use set out by the FDA the real issue here, or is it clearly a way of banning abortions regardless of FDA approvals.

Question 2: Does the law prohibit the use of methotrexate to treat ectopic pregnancies?

That is, when a woman has a pregnancy where the embryo implants outside of the womb, which is in most cases not viable and dangerous to the mother, are doctors prohibited from using methotrexate terminate the growth of the developing embryo.

The Oklahoma Supreme Court answered both questions with a resounding yes. Answering these questions was a matter of statutory interpretation, and therefore legal rather than factual questions. For law students, the Oklahoma Supreme Court’s responses provide an interesting example of how a court proceeds with statutory interpretation, but that’s an examination for another day. The Court concluded that the law “effectively bans all medication abortions”, and made a very clear statement on the poor attempt by the legislature in Oklahoma to supersede their political beliefs over the training and experience of medical professionals, stating that:

“[t]he role of the physician is to heal the sick and the injured, and physicians are required to undergo rigorous training to develop the required knowledge and experience to perform that role well”.

Citing their original finding, the Court reiterated that the law’s restrictions on the use of these drugs when used for abortion 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 publish and discriminate against those who do”.

Now that the the Oklahoma Supreme Court has responded to the US Supreme Court’s questions, it is likely to proceed to be set for argument and decided in the current US Supreme Court Term. According to SCOTUS blog, there is a possibility that the US Supreme Court will seek formal responses to the Oklahoma Supreme Court’s answers from the plaintiffs and respondents.

Couple this case with yesterday’s Texas case (and the announcement that it will be appealed to the US Court of Appeals in the Fifth Circuit) and we have a positive track of the judiciary upholding women’s reproductive rights that we can only hope will be affirmed by these higher courts.

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Good but not Great: Parts of Texas Abortion Law Declared Unconstitutional

Texas Legislature 2013

Used under creative commons licence, copyright to image held by sparkleplen_t on flickr @ http://www.flickr.com/photos/98759094@N00/9195467920/

Update 2 30 Oct 2013 @11.25am: The 5th Circuit Court of Appeal did not grant Texas’s emergency motion to block Judge Yeakel’s decision. As a result, Judge Yeakel’s permanent injunction preventing the new abortion laws discussed below from coming into effect remains in effect, allowing clinics to stay open and doctors to administer medical abortions in certain cases.

Update 29 Oct 2013 @1.52pm: Overnight, Texas asked for an emergency order from the 5th Circuit Court of Appeal to block Judge Yeakel’s decision. The struck out provisions would have otherwise gone into effect today. Texas has asked the Court of Appeal to decide on an emergency temporary injunction today, and hear the full appeal in January.

Less than 2 hours ago, a Federal Court Judge in Texas struck down two key parts of the Texas Abortion Law amended by “House Bill 2” on the grounds that they placed undue burden on women seeking an abortion. The law is the same one made famous by Democrat Senator Wendy Davis’ marathon filibuster efforts when House Bill 2 was brought before the Texas Senate in June this year.  House Bill 2 was later signed into law by Governor Rick Perry after passing both the Texas House and Senate in a special session, however women’s health organisations, including Planned Parenthood, launched an appeal to the law seeking that it be declared unconstitutional by the court. House Bill 2 is scheduled to take effect on 29 October 2013.

The lay of the land

In Texas, a woman has a right to terminate her pregnancy before it is viable. A law will be unconstitutional if it imposes an undue burden on a woman’s decision to abort a fetus before it is viable. An undue burden includes any legislation that has the purpose or the effect of placing a substantial obstacle in the path of a woman seeking an abortion for a nonviable fetus. Where a fetus is viable, legislation may be made restricting the right to an abortion, except where an abortion is necessary for the preservation of the life or health of the mother. In the seminal (or perhaps ovarial?) case on this issue, Roe v Wade, fetal viability “is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks”. Part of House Bill 2 changed the definition of fetal viability to 20 weeks, drastically cutting back the time period of a Texan woman’s right to an abortion for a nonviable fetus.

This change to the definition of fetal viability was not the central point of the court’s decision – rather, two other parts of House Bill 2 were challenged on the grounds that they were unconstitutional.

Judge Lee Yeakel of the Federal Court for the Western District of Texas (see a primer on US District Courts here) held that two parts of House Bill 2 were unconstitutional, as they placed undue burden on women seeking an abortion of a nonviable fetus.

In summary, Judge Yeakel held that:

  • the requirement that doctors performing abortions have admission privileges was without a rational basis and placed a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and
  • the restrictions on medical abortions place a similar obstacle in cases where a physician finds such an abortion necessary.

The findings of the Court on these two points are discussed in further detail below.

Admission privileges requirement

Admission privileges are the ability of a doctor to admit a patient to a particular hospital for medical treatment. Typically, a doctor will have admission privileges where they are on a hospital’s medical staff, however admission privileges may also be given to external doctors to admit patients to a hospital.

House Bill 2 required that a physician performing an abortion must have admission privileges at a hospital with obstetric or gynaecological health care services less than 30 miles away from where the abortion is performed. If a physician performs an abortion contrary to these requirements, they are liable for a Class A misdemeanour, punishable by a fine up to $4,000. As a result, doctors working in an abortion clinic in a rural area or any area more than 30 miles from a gynaecological hospital where they have admission privileges would be criminally liable under the House Bill 2.

Texas argued that the admission privileges requirement was a necessary part of protecting the health of women, as a physician with admission privileges will be in a better position to ensure continuity of care at a hospital in the case of patient complications. In addition, Texas argued that this would also decrease the likelihood of medical errors in the patient transfer process from abortion provider to hospital. Texas failed to provide any evidence supporting a correlation between medical errors, patient transfers and a physician’s “admission privilege” status. The Court destroyed this position rather logically – pointing out that admission privileges have nothing to do with a patient when they turn up at a hospital for emergency care, and that by law a hospital cannot refuse to provide emergency care. In addition, there was no evidence that admission privileges affected a patients quality of care in an emergency room. As a result, the Court found that there was no rational basis of imposing this requirement, and as such a requirement would leave at least 24 counties in the Rio Grande Valley without an abortion provider who could satisfy it, women in those regions would face a substantial obstacle in accessing abortion services.  The outcome: the admission privileges requirement places an undue burden on Texan women seeking to exercise their Constitutional right to an abortion before fetal viability, and as a result, is unconstitutional and struck out.

Medication abortion

A medication abortion typically requires the administration of two drugs. The first, mifepristone, or RU-486, acts by preventing a fertilised egg from attaching, or an embryo from staying attached, to the uterine lining. Misoprostol acts to contract to uterus and expel the embryo and uterine contents. These drugs are an alternative to surgical abortions, or dilation and curettage.  The FDA has approved the use of these drugs to the first 49 days after a woman’s last menstrual period. The American College of Obstetricians and Gynecologists has endorsed the use of these drugs in a varied manner (“off-label”) and at lower doses, resulting in reduced doctor visits and side effects while also extending the period that RU-486 can safely be used up to 63 days after a woman’s last menstrual period.

House Bill 2 amended Texan safety laws to restrict the administration of these drugs to the FDA protocol, while allowing the off-label dosages. In Court, Texas conceded that the mixed FDA/off-label protocol required by the law was completely untested. The Plaintiffs argued that the FDA protocol required by House Bill 2 is not medically necessary and the off-label protocol, taken as a whole to include administration method and dosage, is the safest and most widely used use of RU-486. In addition, the FDA approach prevents medication abortions from 50 – 63 days, leaving women with only surgical options to abortion. The Court held that the differences between the off-label and FDA protocol may on their own be incidental, but as a totality, such as doctors visits plus side effects plus cost, but in totality may become an undue burden, however this was not satisfied in this situation. The Court also was not satisfied by the argument of a “preferred” option of medication versus surgical abortions, stating that “[i]ndividuals do not have a constitutional right to a preferred medical option, so long as a safe, medically accepted, and actual alternative exist”. For the Court, surgical abortions satisfy this.

However (and it’s a big however!) where a medication abortion is the only safe and medically sound option for women with particular physical abnormalities or preexisting conditions, House Bill 2 places a substantial obstacle in the path of such women seeking an abortion. Even though the Attorney-General of Texas stated that they wouldn’t prosecute a doctor performing such an abortion, “a promise not to prosecute from the Attorney General is not binding”.

As a result, the Court held that the medication abortion provisions of House Bill 2 placed an undue burden on those women for whom surgical abortion is, in the medical opinion of their physician, a significant health risk during a pregnancy from 50 to 63 days after their last menstrual period.

Conclusions

The findings of the Court and Judge Yeakel are generally good outcomes. As a result of this decision, 1/3 of Texas abortion clinics that would otherwise have likely had to close will not, and safe, medication abortions are available for women whose health would otherwise be put at risk by a surgical abortion.

Unfortunately, the 20 week viability definition still remains on foot. In addition, women must fall within a very specific category to have access to medication abortions after 49 weeks, which are safe, effective and more private than surgical options.

In the words of Nancy Northup from the Centre for Reproductive Rights, “[p]oliticians, not doctors, pushed for both of these unconstitutional restrictions – despite the best medical standards for women’s health care”.

The Texas Attorney General is expected to file an appeal of Judge Yeakel’s order to the 5th Circuit Court of Appeal.

Regardless of whether that occurs, there is more work to do in Texas: access to safe abortion options are a reproductive right, and an essential element of access to essential healthcare for women.