WASHINGTON — 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.
Decision praised, criticized
An Oklahoma County district judge first struck down the law, and the Oklahoma Supreme Court upheld that ruling. Pruitt appealed to the U.S. Supreme Court last year.
The U.S. Supreme Court in June took the unusual step of accepting the case but then asking the Oklahoma Supreme Court to clarify its ruling. The nation's high court asked the state court to determine whether the state law would ban all drug-induced abortions.
The U.S. Supreme Court also asked whether the state law would ban methotrexate for ectopic pregnancies — those in which the embryo implants outside the uterus. The state court said Tuesday that the state law would ban methotrexate to treat those pregnancies since the drug was never specifically approved for that purpose.
With the answers from the state court, the U.S. Supreme Court will now determine how to approach the case.
Nancy Northup, president and CEO of the Center for Reproductive Rights, which provided legal counsel to the Oklahoma coalition, said the group is confident the U.S. Supreme Court will uphold the state court's decision.
The state decision “strongly reaffirms that this blatantly unconstitutional law was designed to not only rob women of the safe, legal and effective option of medication to end a pregnancy at its earliest stages, but also threaten the health, lives and future fertility of women suffering from ectopic pregnancies,” Northup said.
Pruitt, while defending the law as a proper restriction on off-label protocols, also has argued that it would be constitutional even if interpreted to ban all drug-induced abortions.
He said Tuesday, “We took the extraordinary step of asking for a review by the U.S. Supreme Court because we believed the Oklahoma Supreme Court erred in striking down the law.
“We believe they have erred yet again by interpreting the law more broadly than the Legislature intended. Despite the court's misinterpretation, we intend to enforce the law as written, if upheld, and continue to fight for improved care that protects Oklahoma women from harmful outcomes.”