Likely Supreme Court Case Will Test Claim That Abortion Restrictions 'Protect' Women's Health

September 11, 2013 — The "canny genius" of the wave of antiabortion laws in the last few years "is that they reduce access to abortion in the name of protecting women's health" and "are written to seem reasonable, sober, and safety based," Emily Bazelon writes in Slate.

Perhaps the best example is a 2011 Oklahoma law that regulates medication abortion and "promises to be the next big Supreme Court case about abortion," she contends.

Bazelon explains that when FDA approved medication abortion in 2000, "it was already legal in 18 countries," and the "standard regimen at the time was a dosage of 600 milligrams of Mifeprex, doled out over three clinic visits, and only to women in the first seven weeks of pregnancy." Research since then has shown that it is safe and effective to use a 200-milligram dose at the initial office visit, with women taking the second drug in the regimen at home. This two-part regimen can be used up to nine weeks of pregnancy.

Oklahoma Case

According to Bazelon, Oklahoma is one of five states that "requires the prescribing doctor to follow the FDA protocol for administering" medication abortion drugs, but "Oklahoma's version isn't written that clearly."

She writes that the law "either bans all medication abortions" -- as the Center for Reproductive Rights, which is challenging the law, insists -- "or it requires doctors who do medical abortions ... to follow the FDA protocol" -- which is what Oklahoma's lawyers maintain. Bazelon writes that what is "fascinating and brilliant" about Oklahoma's law is that it requires physicians to follow FDA protocol, which "sound[s] like a good idea" but is "not how medicine works."

Doctors prescribe many medications for "off label" uses, rather than those for which they were initially approved, she explains. In the case of medication abortion, "the alternate regimen is cheaper," and experts say the method is more effective and has less side effects. However, the drug's manufacturer has not sought FDA approval for the new method, in part because it is a costly process and the company faced a "big fight for approval the first time around," according to Bazelon. She notes that while she "heard" that the manufacturer might seek a label change to include the new regimen, the company declined to verify the rumor.

Legal Challenge

Bazelon points out that the Oklahoma Supreme Court in 2012 "issued a terse opinion striking down the law as unconstitutional without really explaining why, or which interpretation of the law is correct." As a result, the U.S. Supreme Court sent the matter back to the state court for further clarification.

Bazelon thinks it is likely the high court will eventually hear the case, which she writes will hinge on the question, "Should states single out Mifiprex for different treatment from any other drug?"

"On a deeper level," she questions if states should "be in the business of ordering doctors to provide what they believe, based on the best medical evidence, is substandard care." Bazelon concludes, "Only in the field of abortion does the government interfere in this way with doctors and their patients" (Bazelon, Slate, 9/10).