WASHINGTON — A state law aimed at banning some drug-induced abortions was not intended to prohibit all such abortions, though an outright ban would be constitutional, Oklahoma Attorney General Scott Pruitt told the state Supreme Court in a closely watched case.
And, Pruitt claims in a new brief, the U.S. Supreme Court eventually will consider the Oklahoma law no matter how the Oklahoma Supreme Court rules.
Many on both sides of the abortion issue are watching the case unfold in Oklahoma because the U.S. Supreme Court has accepted it on appeal and asked the Oklahoma Supreme Court to answer some key questions.
The U.S. Supreme Court has not ruled on the types of restrictions some states have recently been putting on abortion, so the Oklahoma case offers justices the chance to address a specific one and, perhaps, make a broader ruling on how far states can go.
The Oklahoma Coalition for Reproductive Justice, which challenged the law and won at both the district court level and the Oklahoma Supreme Court level, said in a filing last month that the case 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.”
The question at the heart of the Oklahoma case is whether a 2009 state law effectively prohibits all drug-induced abortions or just ones that don't follow a federally approved protocol.
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.
The abortion rights coalition told the court that the FDA never specifically approved either of the drugs used in the protocol for abortion, meaning that the Oklahoma law “flatly prohibits any medication from being used off-label to terminate a pregnancy.”
But Pruitt, in a brief filed this week and in previous filings, contends that the law addresses the FDA protocol for the drugs and clearly allows drug-induced abortions that follow that protocol.
He said the abortion rights group challenging the law was trying to convince the Oklahoma Supreme Court to “make this case go away” by ruling that the law bans all drug-induced abortions.
But Pruitt contends that won't make the case go away because the U.S. Supreme Court will consider it no matter how the Oklahoma Supreme Court rules.
The state has always maintained that the law is constitutional even if it's interpreted as a total ban on drug-induced abortions, Pruitt told the state court.