Anti-abortion advocates were struck with a double blow Tuesday when the Oklahoma Supreme Court ruled two state laws are unconstitutional. The laws would have required a woman to have an ultrasound at least one hour before getting an abortion and would have restricted the off-label use of certain abortion-inducing drugs such as RU-486.
The high court ruled in separate opinions that lower court judges were correct to block the laws.
In both cases, the Supreme Court said the laws violated a 1992 U.S. Supreme Court decision. It's the third time this year Oklahoma justices have struck down an anti-abortion measure because it went against a U.S. Supreme Court ruling that women have a constitutional right to an abortion.
“Because the United States Supreme Court has previously determined the dispositive issue presented in this manner, this court is not free to impose its own view of the law,” the Oklahoma Supreme Court's opinions state.
“The Oklahoma Constitution reaffirms the effect of the supremacy clause on Oklahoma law by providing, ‘The state of Oklahoma is an inseparable part of the federal union, and the constitution of the United States is the supreme law of the land.'”
Reaction to ruling
Michelle Movahed, an attorney for the Center for Reproductive Rights, the New York-based group that filed legal challenges to both state measures, said the Supreme Court's rulings were “a resounding rejection of the Oklahoma Legislature's attempt to restrict women's constitutional rights.
“I hope that the Oklahoma Legislature does take a lesson and turn to subjects that won't involve clear violations of the Constitution,” she said.
Nancy Northup, president and chief executive officer at the Center for Reproductive Rights, a New York-based group that filed legal challenges to both state measures, said her group is pleased with the rulings.
“As the courts that have already heard these cases have resoundingly affirmed, a woman's right to a full range of reproductive health care is fundamental and constitutionally protected,” Northup said.
Oklahoma Attorney General Scott Pruitt whose office appealed lower-court decisions that invalidated the laws said the state may appeal the decisions to the U.S. Supreme Court.
“We disagree with the court's decision, particularly with the fact that the question on whether Oklahoma's constitution provides a right to an abortion was left unanswered,” Pruitt said.
“We also are disappointed that the court upheld the district court ruling on abortion-inducing drugs such as RU-486,” Pruitt said.
“There is overwhelming evidence that the off-label use of abortion-inducing drugs leads to serious infections and death for many healthy, unsuspecting women. This is not OK. Our job is to protect the citizens of Oklahoma, and we will consider an appeal.”
Tuesday's rulings are the second and third time in slightly more than seven months that the state Supreme Court has struck down a proposal that it said goes against a U.S. Supreme Court ruling on abortion
In late April, the justices rejected an effort to put on the ballot a question that would define a fertilized human egg as a person. They said in a unanimous ruling that the personhood proposal was void and should be stricken because the U.S. Supreme Court already had ruled in 1973's Roe v. Wade decision.
Both state Supreme Court decisions Tuesday were unanimous.
The Supreme Court voted 9-0 in the appeal of House Bill 1970, which legislators passed last year and would have required doctors to follow strict guidelines authorized by the U.S. Food and Drug Administration and would have prohibited off-label uses of the drugs, such as changing a recommended dosage or prescribing it for different symptoms than the drug was intended.
It also would have required doctors to examine women before prescribing the drugs, document certain medical conditions and schedule follow-up appointments.
Justices voted 8-0 on the appeal of HB 2780, which lawmakers passed in 2010 and would have required a doctor to show a pregnant woman a view of her fetus and describe in detail what is visible, including any limbs or organs. Justice Noma Gurich recused herself.
The Oklahoma justices referred in both cases to a 1992 U.S. Supreme Court case in which the constitutionality of several Pennsylvania state regulations regarding abortion was challenged.
The court upheld a woman's constitutional right to have an abortion, with the justices imposing a new standard to determine the validity of laws restricting abortions. The new standard asked whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Rep. Lisa Billy, R-Lindsay, author of the ultrasound measure, said she thinks the justices misinterpreted the U.S. Supreme Court decision and that it does allow informed consent for women seeking abortions.
“I'm actually very hopeful that some point in time we will be able to have a decision whether it's through being appealed … that every woman who is seeking to terminate her unborn child will have all of the information in her hands prior to her making that life-changing decision,” she said. “It may be a way off before we get there.”