WASHINGTON — The U.S. Supreme Court intervened in an Oklahoma abortion case Thursday to seek an opinion from the Oklahoma Supreme Court about the practical effect of a state law restricting the use of abortion-inducing drugs.
The nation's high court asked the state's highest court to determine whether a 2011 Oklahoma law effectively bars the use of drugs to end pregnancies, including ones in which the embryo implants outside the uterus.
The Oklahoma Supreme Court struck down the 2011 law, which sought to ban “off-label'' uses of abortion-inducing drugs.
However, it wasn't clear Thursday whether the U.S. Supreme Court would ever get to the legal question of banning abortion-drug protocols that weren't approved by the U.S. Food and Drug Administration, as the high court's first concern was whether the law effectively banned all abortions using medication.
The Oklahoma Coalition for Reproductive Justice, which successfully challenged the law, argued that the law did place a broad ban on abortions — including in cases of life-threatening pregnancies — using medications. Oklahoma Attorney General Scott Pruitt disagrees on that key point, saying the law doesn't prohibit all drug-induced abortions.
The state's high court did not provide an analysis of that issue before striking down the law as unconstitutional.
The U.S. Supreme Court is seeking that analysis now before deciding how it will approach the case.
The justices took no action Thursday on a separate Oklahoma abortion case about a law that would require women to undergo an ultrasound test before getting an abortion.
Effect of state law
The FDA-approved protocol for RU-486, also known as mifepristone, combines that drug with a dose of misoprostol for abortion.
However, according to the Oklahoma coalition of abortion rights groups, the state law doesn't allow the use of misoprostol for abortions because it is an off-label use — that is, the FDA had not approved it specifically for abortion.
Moreover, the groups said, physicians wanting to avoid “invasive and risky surgery'' frequently end ectopic pregnancies with an injection of methotrexate, but that use is off-label.
In his brief to the U.S. Supreme Court, Pruitt said the state law did not ban the use of misoprostol for abortions.
“Since the approved protocol for Mifeprex — the only protocol the FDA has approved for terminating a pregnancy with medication — requires the use of misoprostol, the Oklahoma law does not ban the use of misoprostol as part of that protocol,” Pruitt argued.
In an order Thursday, the U.S. Supreme Court asked the Oklahoma Supreme Court if the 2011 law prohibits the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone; and whether it prohibits the use of methotrexate to treat ectopic pregnancies.
The U.S. Supreme Court did not give the Oklahoma court a deadline and is not likely to take further action in the case until its next term begins in October.
Because the abortion rights groups won the case in Oklahoma courts, it had urged the U.S. Supreme Court not to review the law, in part because of the critical dispute over the law's effect on all medication abortions.
Michelle Mohaved, an attorney for the Center for Reproductive Rights, which is representing the Oklahoma coalition, said Thursday, “I think it's important that the (U.S.) Supreme Court is taking seriously the questions we raised about the breadth of the law.”
Mohaved declined to speculate on how the U.S. Supreme Court would proceed after receiving a response from the Oklahoma court.
Pruitt had sought the high court review, hoping justices would ultimately agree that the law did not violate the U.S. Constitution.
Pruitt said Thursday, “This is an extraordinary decision by the U.S. Supreme Court to review the actions of Oklahoma's Supreme Court, which has consistently misapplied federal law to strike down Oklahoma abortion laws.
“This law does not ban the use of abortion-inducing drugs, but seeks to protect women from harmful off-label uses. The court grants less than 1 percent of such review requests and we look forward to the opportunity to defend Oklahoma's right to protect its citizens.”
The FDA-approved protocol for RU-486 and misoprostol requires three visits to a clinic and a 600-mg dose of mifepristone; the procedure could be used up to 49 days into a pregnancy.
However, since that protocol was established, an alternative method has been developed that requires a smaller dose of mifepristone and can be used up to 63 days into the pregnancy. Also, the dose of misoprostol can be taken at home.
So-called evidence-based regimes are common and legal; and, according to the Oklahoma abortion rights groups, the alternative regime accounts for two-thirds of all abortions at a Tulsa clinic.
The groups say the medical community regards the prevailing regimen as superior to the FDA-approved protocol because it's safer, more effective and cheaper. But Pruitt argued that eight women have died from bacterial infections using the alternative regimen and that state legislators were trying to address a serious health issue in passing the 2011 law.