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.