The issue in Oklahoma, though, was that the law as drafted was ambiguous. It either had the effect of banning all medication abortions, or—as the state contended—merely provided that medication abortions induced with Mifeprex had to follow the FDA protocol. The Oklahoma Supreme Court decision from 2012, which struck down the law, merely found that the law as written was unconstitutional under Planned Parenthood v. Casey, the 1992 case that reaffirmed Roe but permitted abortion regulations that are "reasonable" and do not impose an "undue burden" on women.
So what happened this week in Oklahoma? Having been told by the Supreme Court to unpack its earlier decision striking down the medication abortion law, the state Supreme Court took 22 pages to explain that yes, in its view, the Oklahoma statute barred physicians from using misoprostol (the second drug in the protocol) and methotrexate (a third drug sometimes used in the abortion-inducing protocol). By focusing on outdated FDA regulations, the state’s intention was to outlaw medication abortion.
Last April, a district court judge in North Dakota struck down a similar ban on off-label uses of abortion inducing drugs. But last year a federal appeals court upheld a related Ohio law, largely on the theory that the restriction was not unconstitutional if a majority of women could still access abortion in some other manner. The split increases the chance that the Supreme Court will have to decide the issue.
Meanwhile, in Texas this week, U.S. District Judge Lee Yeakel upheld a provision of the Texas law that limited doctors to FDA labeling requirements for medication abortions. The Texas law differs from the Oklahoma statute HOW? Judge Yeakel didn’t seem to buy the state’s proffered safety reason for forcing doctors to stick to the labelling requirements: “This court finds that, when performed in accordance with the off-label protocol, medication abortion is a safe and effective procedure, as is medication abortion with the FDA protocol.” He also found that “taken as a whole, the FDA protocol is clearly more burdensome to a woman than the off-label protocol.” But then he deemed the burden insufficient to strike the law down. The restriction wasn’t an unconstitutional ban, he reasoned, since women have other options. And to make sure that women’s health isn’t compromised, he wrote a do-it-yourself health exception into his opinion: “The medication abortion provision may not be enforced against any physician who determines, in appropriate medical judgment, to perform the medication-abortion using off-label protocol for the preservation of the life or health of the mother.”
As a result of this ruling, in Texas, some doctors must prescribe heavier doses of abortion-inducing drugs (unless they see a threat to the health or life of the woman) and can only offer medication abortions up to seven weeks into a pregnancy, as opposed to nine.
How to reconcile the Oklahoma Supreme Court’s decision to strike down the law with the Texas court’s determination that it could stand? Partly the bad drafting in Oklahoma. But it feels like something else is going on.
The Oklahoma Supreme Court struck down the statute by focusing a great deal of attention on the professional imperative requiring that licensed physicians adhere to best practices. Indeed the whole concluding section revolves around the professional obligations of doctors and the Hippocratic oath. The court’s path here is very different path than the one taken by Yeakel, who focused on a woman’s right to medical care (and then said that a woman’s right was not compromised as long as alternative procedures exist). This semi-solicitude for a woman’s health is the result of a years-long campaign by opponents of choice, to suggest that protecting women’s health is so critically important, that every other concern falls away.
If the Oklahoma Supreme Court ruling had been a full-throated discussion of women’s rights, and all the ways regulating medication abortions drastically restrict them, it would have been close to perfect. But the court was thinking about physicians. The Oklahoma Supreme Court’s attention to the rights (and statutory responsibilities) of physicians is reminiscent of Justice Harry Blackmun’s original reasoning in Roe, which as Jeffrey Toobin recently reminded us, had a lot less to do with a woman’s rights than those of her physician. As Toobin wryly observed, the word “physician” appears in Roe 48 times, the word “woman” 44 times. Later cases made clear that the rights of the physician and woman were in fact aligned; that this is the relationship on which the state must not intrude.
It just shouldn’t be the case, 40 years after Roe, that courts still don’t see the rights of women and those of their doctors as equally compelling; that such opinions still just don’t seem to “write” (as the lawyers say). The Oklahoma Supreme Court decision was correct, but it still pinches that the outcome is rooted in the harms to doctors who can't practice medicine as they see fit, as opposed to the needs of women to get the care they are due. Efforts to legislate first-trimester, constitutionally permissible abortion right out of existence, are subversive and paternalistic. And the cure for legislative paternalism shouldn’t be judicial paternalism.