In 2011, Oklahoma passed a law making it harder for doctors to prescribe abortion-inducing drugs. Oklahoma’s Supreme Court struck down the law as unconstitutional. Then the Supreme Court agreed to review the case, but asked the Oklahoma court (which had written only a few paragraphs) to clarify why they struck down the law in the first place. This week, the Oklahoma Court explained itself: The state’s effort to regulate abortion-inducing drugs amounted to a total ban on medication abortions. And so it was unconstitutional.
One day earlier, a lower court in Texas, looking at a substantially similar (but not identical) effort to regulate medication abortions, upheld the provision, albeit with an exception. If a woman need a nonsurgical abortion to protect her health or life, she can still get it. The raft of new efforts to regulate medication abortions are confusing, and the legal questions surrounding them are even more so. How can we square what happened in Texas with what happened in Oklahoma, and what does it all mean for the future of this type of abortion at the Supreme Court, where the Oklahoma case may be heard in the near future?
The constitutional questions around medication abortions are new and complicated and different from the usual fights we’ve witnessed over surgical abortion and TRAP laws (Targeted Regulation of Abortion Providers). Medication abortions mainly involve the drug mifepristone, or RU-486. They take place in the first trimester—and that means the state-erected limits are often thinly disguised state efforts to challenge what remains of Roe v Wade. Oklahoma Gov. Mary Fallin, signing her state’s bill in May 2011, called it “a critical part of our effort to promote the cause of life.” Gov. Rick Perry has expressly stated that his goal is to make abortion at any stage “a thing of the past.” In effect, these challenges force questions that have been unanswered for years at the court: Is Roe still on safe ground? Are state efforts to force the question back before the high court going to pay off? And what does it mean when courts seem to find it easier to write about the rights of doctors to practice good medicine than the rights of women to receive it?
Twelve states, including Oklahoma, have some form of medication-abortion regulations on the books. The Oklahoma ban was incredibly poorly drafted, essentially sweeping in any “abortion inducing medication,” which made it easy for the state Supreme Court to see it as a total ban. The other states have been sneakier.
As Linda Greenhouse explained in September, the issue here is not the abortions themselves. The statues revolve around how doctors may prescribe the series of pills that induce them. Only one drug—mifepristone—has been approved by the FDA for inducing abortions, and only for the first nine weeks of pregnancy. But the way doctors use this drug and others related to it has changed in the intervening years. At this point, the most common medication-abortion protocol requires that women take two pills: mifepristone, which terminates the pregnancy, and misoprostol, two days later, which causes the uterus to expel the pregnancy. In most states, women can take the first pill at her doctor’s office and the second pill at home, which helps improve access for poor or rural women who live far from abortion clinics, can’t take off several days from work, and want to terminate as early as possible.
Under the 2011 Oklahoma law, the state required physicians to follow the dosage and procedures only as written on the F.D.A. label. The prohibition on allowing doctors to prescribe the pill in a manner considered "off-label" effectively means that although research and best practices have evolved (as they have for medications approved for cancer and migraines and most other things), physicians must continue to prescribe dosages that are medically outdated. As Amanda Marcotte explained in Slate, since the FDA label was approved, further research has shown that the second pill in the series can safely be taken at home, and that the 600 milligrams of Mifeprex required by the label is too high. Most doctors agree that only 200 milligrams are needed. Finally, as Greenhouse clarified, “While the original F.D.A. label specified that the drugs should be used only up to 49 days of pregnancy, doctors have found the regimen safe and effective for up to 63 days—nine weeks of pregnancy.”
To sum up, the FDA label mandates a protocol that is more cumbersome, expensive, and dangerous for most women. Emily Bazelon explained why FDA reauthorization has not been sought, even though, at this point “96 percent of all medication abortions now involve an evidence-based regimen that departs from the FDA protocol that’s on the label.” That’s why a district court judge in Oklahoma, looking at the restriction, found that limiting physicians to the label requirements was “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 punish and discriminate against those women who do.” In other words, he got it. And then he stopped Oklahoma’s law from going into effect.