Okla. Law Will Be Next Supreme Court Abortion Case, Predicts NYT's Greenhouse

September 5, 2013 — The Supreme Court's next abortion case "has arrived" in the form of a disputed Oklahoma law, and abortion-rights supporters are concerned that Justice Anthony Kennedy could cast a deciding vote that broadens states' ability to impose restrictions on the procedure, Linda Greenhouse writes in the New York Times' "Opinionator" (Greenhouse, "Opinionator," New York Times, 9/4).

The 2011 law (HB 1970), which is not in effect, prevents doctors from using telemedicine to administer medication abortion and mandates that they follow FDA guidelines for the drug, rather than guidelines from the American College of Obstetricians and Gynecologists and the National Abortion Federation that currently are used.

Last December, the Oklahoma Supreme Court upheld a lower court ruling that struck down the law, which in turn led the state to file an appeal with the U.S. Supreme Court. In June, the high court agreed to review the law, pending clarification on whether the state Supreme Court thought the law bars the use of the abortion drug misoprostol, even when physicians follow FDA protocol (Women's Health Policy Report, 6/28).

The justices could drop the case or decide to intervene based on the state's response, but Greenhouse -- a former Supreme Court reporter for the Times who now teaches at Yale Law School -- thinks it is unlikely that they "will decide not to proceed."

Efforts To Restrict Medication Abortion

Greenhouse explains that doctors prescribe medication abortion drugs differently than FDA originally required in approving the method in 2000. The method involves two drugs: Mifepristone, sold as Mifeprex, which is taken first and ends the pregnancy, and misoprostol, which is taken two days later and causes the uterus to contract and expel its content. Women typically take the second pill at home.

She notes that the new 200-milligram dose of Mifeprex "is so widely accepted that the [old] 600-milligram dosage is now considered bad medicine, and many doctors would refuse the procedure entirely rather than follow the old guideline."

However, Oklahoma Attorney General Scott Pruitt (R) in a brief filed with the state Supreme Court held that the state law seeks "to solve the problem of physicians using potentially dangerous unapproved protocols."

In other efforts to restrict medication abortion, 17 states have enacted regulations prohibiting the use of telemedicine in administering the drugs, Greenhouse writes. She notes that these restrictions are not actually intended to protect women but, rather, to further restrict a procedure that "offers an end-run around the obstacles that for years have been a core part of opposition strategy."

Key Issues

According to Greenhouse, the case ultimately challenges the "Supreme Court's own unstable abortion doctrine" as outlined in the 1992 Planned Parenthood v. Casey decision, which permits states to enact abortion restrictions that do not impose an "undue burden" on women seeking abortion care. The court defined such a burden as "a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

However, Casey did not clarify what a "substantial" burden was, nor did it specify whether a state's "real purpose" behind enacting the restriction would be taken into account, or whether a state's "counter-factual claim that the purpose [of a restriction] is to protect women" is an adequate rationale, Greenhouse notes.

Concerns About Kennedy

Greenhouse explains that Kennedy in a separate 2007 decision on the procedure abortion-rights opponents call "partial-birth" abortion accepted as fact the invalidated claim that the procedure "placed women at special jeopardy for acute post-abortion regret," based solely on a brief that compiled personal affidavits by women who had undergone an abortion. A similar brief has been filed in support of Oklahoma's appeal, though Greenhouse writes that "not one [of the personal testimonies] actually says anything on the question before the court" regarding the proper medication abortion dosage.

"All that binds the current court to the Casey standard -- whatever that standard can be said to mean today -- is stare decisis, respect for precedent," Greenhouse adds, concluding that "that may not count for much" ("Opinionator," New York Times, 9/4).