In recent years, courts have struck down several measures passed by the Oklahoma Legislature to restrict abortions.
Backers of two more such measures, due to go into effect Nov. 1, expressed confidence Thursday that this time their legislation will hold up legally — an opinion disputed by an attorney for a group that has successfully sued the state in the past.
“I believe that undoubtedly there will be a legal challenge,” said Sen. Greg Treat, R-Oklahoma City. “I think we are on safe legal ground, and that it is very defensible, although I can’t say unequivocally, because when it goes to a courtroom, you never know what an individual judge could rule.”
Lawmakers approved a bill this year requiring that medical facilities where abortions are performed have a doctor on hand with admitting privileges at a general medical facility within 30 miles.
They also approved House Bill 2684, which requires that certain abortion-inducing drugs be administered only in accordance with U.S. Food and Drug Administration protocol. The Oklahoma Supreme Court ruled that a similar bill, approved in 2011, was unconstitutional and that it effectively banned all drug-induced abortions. Backers of this year’s bill rewrote the legislation to overcome that objection.
But the court also noted that 96 percent of medication abortions are provided according to a regimen different from the one originally described in the FDA-approved label for mifepristone, or RU-486, which is used in a two-drug combination to end a pregnancy.
“As respondents correctly point out, and as the FDA recognizes, human progress is not static: medical research and advances do not stop upon a particular drug’s approval by the FDA,” the court opinion states.
Amanda Allen, state legislative counsel for the Center for Reproductive Rights, said that in trying to ban off-label uses of these drugs, lawmakers produced a bill that runs counter to the court opinion.
“The changes that the Legislature made this year in (House Bill) 2684 do not clear the constitutional defect in this instance and that is because the highest court in the state of Oklahoma made very clear that FDA labeling is not intended to preclude physicians from using their best medical judgment,” she said.
Typical off-label uses of the abortion medication allow for women to take the second day of the drug regimen at home. They also allow for lower dosages and for the medicine to be used about a week later in the pregnancy than the 49 days stated on the label, Allen said.
Rep. Randy Grau, R-Edmond, said the intent of the bill is to protect women and that there can be deadly side-effects with off-label use.
“This is not the Wild West,” he said.
“You can’t just take any drug and, as a physician, use it however you want to with your patients.”
Senate Bill 1848
Grau said watching out for the health of women is also the point of the other major piece of abortion legislation this year in Oklahoma.
The requirements under Senate Bill 1848 that a physician with admitting privileges be present at facilities where abortions are performed helps women in the event of medical complications, he said.
“If you are performing this type of surgery on an individual, it just makes sense that you would have admitting privileges at a nearby hospital so you could continue in the care of the patient,” he said.
Allen said such legislation is merely an attempt to make it harder for a woman to find a place to get an abortion and has been legally challenged elsewhere on the basis that it places an undue burden on women seeking the medical procedure.
Her group was involved in the lawsuit against the original bill seeking to restrict use of abortion drugs, but Allen said no public decision has been made yet on whether to challenge this year’s legislation, which was signed into law by Gov. Mary Fallin.
The governor defended the bills.
“I believe that abortion is wrong, and I have been proud to work with lawmakers to support legislation that protects the health and lives of both mothers and their unborn children,” she said.
Lawyers have successfully challenged Oklahoma abortion restrictions at least three other times since late 2012.
In January 2014, a judge ruled that a law barring young girls from an over-the-counter emergency contraceptive was unconstitutional.
The law prevented girls under the age of 17 from getting Plan B One-Step without first seeing a doctor.
In August 2013, a judge blocked a measure that would have forced women to show identification when buying “morning after” emergency contraceptives and required girls younger than 17 to have a prescription for the medication.
In December 2012, the Oklahoma Supreme Court struck down a 2010 law that required a woman to have an ultrasound at least one hour before getting an abortion.