State law would ban all drug-induced abortions, Oklahoma high court says

In a closely watched case that will ultimately be decided by the U.S. Supreme Court, the Oklahoma Supreme Court agrees with abortion rights group on law regarding abortion-inducing drugs.
BY CHRIS CASTEEL ccasteel@opubco.com Modified: October 29, 2013 at 8:37 pm •  Published: October 29, 2013
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— A state law on the use of drugs to induce abortion would effectively ban a federally approved method to terminate pregnancies, the Oklahoma Supreme Court ruled Tuesday in a closely watched case that ultimately will be decided by the nation's highest court.

The Oklahoma Supreme Court — responding to questions from the U.S. Supreme Court — said the law passed in 2011 would prohibit all drug-induced abortions. The state court struck down the law as unconstitutional last year.

The case gives the U.S. Supreme Court — which hasn't accepted an abortion case in several years — an opportunity to decide whether states can ban a method of abortion that has been approved by the U.S. Food and Drug Administration.

Sponsors of the law claimed the intent was to ban a two-drug protocol that had not been specifically approved by the FDA to induce abortions. But the state court agreed with abortion rights groups that the law had the effect of banning all drug-induced abortions, including a protocol that had FDA approval.

The court said Tuesday it was “undisputed” that one of the drugs, misoprostol, used to induce abortion, was never specifically approved by the Food and Drug Administration for that purpose, even though the FDA had, separately, approved a protocol for inducing abortion that includes misoprostol, along with RU-486.

Under the wording of the 2011 law, a physician who wants to prescribe a drug to induce abortion must do so according to the FDA-approved label for that drug, the court said Tuesday. Since the FDA label for misoprostol does not specifically approve it for abortions, the state law prohibits its use for terminating pregnancies, the court ruled.

Oklahoma Attorney General Scott Pruitt has argued that the law was not meant to prohibit the FDA-approved protocol for using RU-486 and misoprostol for inducing abortions. Rather, he said, the law was meant to require physicians to follow that protocol, rather than using the off-label protocol that has developed in recent years.

The Oklahoma Coalition for Reproductive Justice, which challenged the law after its passage, argued that it was common for physicians to modify a protocol and unconstitutional to ban the one for abortion. The group also argued that the law effectively banned all drug-induced abortions.

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