WASHINGTON — Oklahoma’s high court set the stage Tuesday for the U.S. Supreme Court to rule on an abortion dispute over whether states may restrict doctors from prescribing the two drugs that are commonly used by women who seek an abortion in the first weeks of their pregnancy.
The Oklahoma case could be the first test of whether the court’s conservative majority will uphold the new state laws that seek to strictly regulate legal abortions.
The legislatures in Oklahoma, Texas and several other states have adopted laws that require doctors to follow the Food and Drug Administration’s protocols for the use of “any abortion-inducing drug.” These laws forbid doctors to prescribe medications for “off-label use.”
Sponsors of the laws said they want to protect the health of women. But medical experts and supporters of abortion rights said the laws would effectively ban medication abortions because the FDA protocol is outdated and conflicts with current medical practice.
Only one drug – mifepristone, or RU-486 – was approved by the FDA in 2000 for inducing early abortions. In the past decade, however, physicians have regularly prescribed a second drug – misoprostol – to complete these abortions through nine weeks of a pregnancy. They also have prescribed RU-486 in much lower dosages.
When the doctors sued to challenge the state law, the Oklahoma Supreme Court ruled it unconstitutional last year in a three-paragraph opinion. The state’s attorney general appealed to the U.S. Supreme Court and argued the state judges had invalidated a reasonable law designed to regulate the safe practice of medicine.
In June, the U.S. Supreme Court took an unusual step when it tentatively agreed to take up the Oklahoma case but first asked the Oklahoma court to clarify whether the 2011 state law “prohibits … the use of misoprostol in conjunction with mifepristone.”
In Tuesday’s opinion, the Oklahoma court said the state law, as written, does prohibit the use of the second drug. It “effectively bans all medication abortions,” the state court declared. The judges explained that mifepristone was an abortion-inducing drug and noted that the FDA had not approved its use for that purpose.
The judges also noted that a third drug – methotexate – is commonly used to terminate early ectopic pregnancies. But because the FDA has not formally approved its use for that purpose, it may not be prescribed by doctors in Oklahoma, the judges said.
Nancy Northup, president of Center for Reproductive Rights, praised the Oklahoma court’s decision.
It “strongly reaffirms that this blatantly unconstitutional law was designed to not only rob women of the safe, legal and effective option of medication to end a pregnancy at its earliest stages but also threaten the health, lives and future fertility of women suffering ectopic pregnancies,” she said.
Now that the Oklahoma court has clarified the state law, the Supreme Court will decide whether to grant a full review. Lawyers noted that a similar Ohio law was upheld by a federal appeals court.
Oklahoma Attorney General Scott Pruitt issued a statement saying he believes the court again misinterpreted the meaning of the bill, which he says is to protect Oklahoma women from “harmful outcomes” that could result from off-label uses.
“We took the extraordinary step of asking for a review by the U.S. Supreme Court because we believed the Oklahoma Supreme Court erred in striking down the law,” Pruitt said. “We believe they have erred yet again by interpreting the law more broadly than the legislature intended.”
Contributing: Associated Press