Doubling Down: Supreme Court refuses to hear Oklahoma’s anti-abortion arguments for transvaginal ultrasounds

Doonesbury 3-14

Part of Trudeau’s 2012 comic series on the transvaginal ultrasound legislation in Texas (but equally applicable in the context of this Oklahoma case) – Universal Uclick (c) 2012 G.B. Trudeau

For the second time in as many weeks, the US Supreme Court has rejected Oklahoma’s request that the court review an Oklahoma Supreme Court’s decision invalidating anti-abortion laws.

This time, the law in question required women to undergo a “narrated ultrasound” before being allowed to proceed with an abortion. The original law (the “Oklahoma Ultrasound Act”, or HB 2780) patronisingly determined that

“[i]n order for the woman to make an informed decision, at least one (1) hour prior to a woman having any part of an abortion performed or induced… the physician [performing the abortion] shall

1. Perform an obstetric ultrasound on the pregnant woman, using either a vaginal transducer or an abdominal transducer, whichever would display the embryo or fetus more clearly;

2. Provide a simultaneous explanation of what the ultrasound is depicting;

3. Display the ultrasound images so that the pregnant woman may view them;

4. Provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable”

When read like this, it is clear that the experience intended by Oklahoma was to be a traumatic one; an experience aimed at manipulating or shaming a woman out of making decisions about her own health and body. From a statutory interpretation perspective, the first clause is particularly interesting – making a decision between a standard ultrasound or transvaginal ultrasound (an ultrasound on a stick inserted up the vaginal canal to the cervix) is based on clarity of viewing the embryo or fetus. There is no space in the Act’s provisions for a physician to take into account the necessity of the procedure, nor in deciding which ultrasound to go for, the wellbeing, comfort or desires of the woman (probably even less so if you take a purposive, rather than purely constructional interpretation approach). As transvaginal ultrasounds tend to provide higher quality resolutions in early stage pregnancies, the result is clear: you want an abortion in Oklahoma, you’ll have to have a physician stick an ultrasound up your vagina, while they narrate to you a story of the gestating embryo or fetus. Now, there’s nothing inherently wrong with transvaginal ultrasounds – they are an incredibly useful tool in women’s reproductive health, including in the abortion setting. However, having a law dictate that a woman must go through with what is an invasive procedure under the patronising guise of enabling them to make an “informed choice” is a completely different matter, and warrants fierce opposition. This is even more so given that abortion and reproductive health procedures are constitutionally protected rights.

In December 2012, the Oklahoma Supreme Court upheld a lower court’s ruling that this patronising law was invalid as it violated women’s constitutional rights. The Oklahoma Supreme Court ruling is delightfully short, stating simply that the law is “facially unconstitutional”. In particular, the Oklahoma Supreme Court upheld the lower court’s finding that the law was in violation of:

  • Article V-59 of the Oklahoma Constitution, which fundamentally is about upholding the Rule of Law. This Article prohibits a legislature from creating a “special law”; that is, a law just for one particular subset of the population. Oklahoma therefore exceeded the powers given to it by the Constitution by passing a law that targeted only female patients, doctors and sonographers where women were seeking an abortion, not all patients, all doctors, and all sonographers in any medical situation.
  • Article V-46, which in a similar vein, provides that the legislature may not create a special law that grants a right to take a civil action (ie take a matter to court) only to a particular class of people. In this case, this related to the rights of a woman’s family, doctors, and the Attorney-General to seek an injunction against abortion providers who violate the law, and to seek damages from an abortion provider knowingly or recklessly violating the requirement to conduct a narrated ultrasound.

So after being struck down as unconstitutional by the Oklahoma District Court, then the Oklahoma Supreme Court, Oklahoma sought to appeal these decision at the US Supreme Court. Tuesday’s denial however means that the last door has closed on this law. With two decisions in the last two weeks, Oklahoma women can breathe a sigh of relief that these laws, putting women’s physical and mental health at risk, have been relegated back to the dark ages from which they came.

Key Legal Docs

US Supreme Court ruling

Here’s a link to the US Supreme Court’s refusal to hear the case by elegantly listing simply the case name under “Certiorari Denied” at the bottom of page 1.

State Supreme Court ruling

Here’s a link to the short and sweet Oklahoma Supreme Court ruling (Nova Health Systems v Pruitt 2012 OK 103 (292 P.3d 29)).

State District Court ruling

Here’s a link to the original Oklahoma District Court ruling (Nova Health Systems et al v Pruitt et al Case No. CV-2010-533) granting the permanent injunction (this was tricky to find!).

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Improvidently Granted: Surprise Early Victory from US Supreme Court for Oklahoma Women’s Rights

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Used under creative commons licence, copyright to image held by Mark Fischer on flickr @ http://www.flickr.com/photos/fischerfotos/7526267232/

In a surprising early turn of events, the US Supreme Court has dismissed Oklahoma’s appeal against a December 2012 ruling by the Oklahoma Supreme Court which struck down a ban on medication abortions as unconstitutional.

As you may recall, on Tuesday, the Oklahoma Supreme Court responded to questions posed to it by the US Supreme Court, seeking clarification on its interpretation of the impact of the law on Oklahoma women. Following this, it was expected that the case would then proceed to securing a place on the SCOTUS hearing docket this or next term.

This afternoon however, SCOTUS has dismissed Oklahoma’s case, stating in one single, elegant line that

“[t]he writ of certiorari is dismissed as improvidently granted”.

This effectively means that following a reading of Oklahoma’s answers, the US Supreme Court has changed its mind on granting Oklahoma the right to appeal, stating that it should not have accepted the case. Oklahoma’s case is therefore dismissed, and the original Supreme Court of Oklahoma’s ruling that the 2011 Oklhamoma law banning off-label use of abortion drugs was unconstitutional is upheld.

Given the legal events of the last two weeks, this is a fantastic win for women’s reproductive health and protection of Oklahoma women’s constitutionally protected rights.

Today’s US Supreme Court ruling in full (all one line of it) can be found here.

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.