WASHINGTON — An Oklahoma abortion law that has drawn the interest of the U.S. Supreme Court was written in sweeping terms to ban all drug-induced abortions, an abortion rights group argued to the Oklahoma Supreme Court this week.
The statute “flatly prohibits any medication from being used off-label to terminate a pregnancy,” the Oklahoma Coalition for Reproductive Justice said in a brief filed Thursday.
The question of whether the 2009 law effectively prohibits all drug-induced abortions or just ones that don't follow a federally approved protocol, is at the heart of the U.S. Supreme Court's inquiry to the Oklahoma Supreme Court in the case.
The law was struck down by an Oklahoma County district judge, and the Oklahoma Supreme Court ruled that it violated a U.S. Supreme Court ruling on state abortion restrictions.
However, the Oklahoma Supreme Court's opinion did not include a thorough analysis of the law and left open the question of what the justices found to be unconstitutional.
The law was written with the apparent intent of banning so-called off-label uses of the drugs, including RU-486, used to induce abortion. In the years after the Food and Drug Administration approved a two-drug protocol to induce abortion, practicing physicians modified the regimen to reduce the amount of one drug needed.
When it was challenged, the arguments focused almost exclusively on whether the state could constitutionally prohibit the regimen that was widely used but had not been approved by the FDA.
Even when Oklahoma Attorney General Scott Pruitt appealed the Oklahoma Supreme Court's decision to the U.S. Supreme Court, there was little attention paid to the question of whether the law had the effect of banning all drug-induced abortions.
The U.S. Supreme Court, in a rare procedural move in June, accepted Pruitt's challenge, but then asked the Oklahoma Supreme Court to answer the threshold question of the law's practical effect. It is not clear how the nation's high court will proceed when its questions are answered.
Pruitt has argued to the state high court that the law does not ban all drug-induced abortions and was narrowly tailored to prohibit the alternative regimen used with the drugs.
But the abortion rights group that first challenged the law argued in its brief this week that the FDA never formally approved one of the two drugs for use in inducing abortions and that the plain wording of the law would prohibit its use in the procedure.
The group says the law was drafted with the assistance of anti-abortion advocates who want all abortions banned and believe the FDA never should have approved the use of RU-486.
In a separate filing, the abortion rights group requested that the Oklahoma Supreme Court hold oral arguments in the case, saying that the court's ruling could set the stage for a U.S. Supreme Court decision that “will affect the health and reproductive choices of women throughout Oklahoma and the nation.”