The state of Oklahoma was disappointed when their new law banning “off label drug use” was blocked by the courts. The ban, which would make it illegal to prescribe medications to be used for any purpose other than the one they were originally created to address, was intended to stop doctors from being able to perform medication abortions in the state.
Now, the Attorney General is making another try at getting the law into effect.
District Judge Donald Worthington last month invalidated the 2011 law, saying it violated a woman’s fundamental right to privacy and bodily integrity.
But Pruitt said Thursday the judge ruled the Oklahoma Constitution contains a right to an abortion, a right never before recognized in any Oklahoma court.
The courts originally rebuked the bill in May, when the judge called the law “so completely at odds with the standard that governs the practice of medicine that [the bill] can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those women who do.” The bill was originally challenged by the Center for Reproductive Rights.
State legislatures came into session in January and quickly focused on a range of sexual and reproductive health and rights issues. By the end of the first quarter, legislators in 45 states had introduced 1,021 provisions. Of the 411 abortion restrictions that have been introduced so far this year, 17 have passed at least one chamber, and 21 have been enacted in five states (Florida, Indiana, Kentucky, South Dakota, and Utah).
This year’s legislative sessions are playing out on a crowded stage. The U.S. Supreme Court is considering a case involving a package of abortion restrictions in Texas; that decision, when handed down in June, could reshape the legal landscape for abortion at the state level. Moreover, just as state legislatures were hitting their stride in late March, the U.S. Food and Drug Administration revised the labeling for mifepristone, one of the two drugs used for medication abortion. That decision immediately put the issue back on the front burner by effectively counteracting policies restricting access to medication abortion in a handful of states. (Notably, the Arizona legislature moved within days to enact a measure limiting the impact of the FDA decision in the state.)
Progress on Several Fronts
Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education. By the end of the first quarter, legislators in 32 states had introduced 214 proactive measures; of these, 16 passed at least one legislative body, and two have been enacted. (This is nearly the same amount introduced in the year 2015, when 233 provisions were introduced.)
Although the proactive measures introduced this year span a wide range of sexual and reproductive health and rights issues, three approaches have received particular legislative attention:
Allowing a 12-month contraceptive supply. Legislators in 16 states have introduced measures to allow pharmacists to dispense a year’s supply of contraceptives at one time; these bills would also require health plans to reimburse for a year’s supply provided at once. (In addition, a bill pending in Maryland would cover a six-month supply.) Legislative chambers in three states (Hawaii, New York, and Washington) have approved measures. Similar measures are in effect in Oregon and the District of Columbia.
Easing contraceptive access through pharmacies. Legislators in 12 states have introduced measures to allow pharmacists to prescribe and dispense hormonal contraceptives. As of March 31, bills have been approved by at least one legislative chamber in Hawaii and Iowa and enacted in Washington. The measures in Hawaii and Iowa would require pharmacist training, patient counseling, and coverage by insurance; the Hawaii measure would apply only to adults, while the Iowa measure would apply to both minors and adults. The new Washington law directs the state’s Pharmacy Quality Assurance Commission to develop a notice that will be displayed at a pharmacy that prescribes and dispenses self-administered hormonal contraception. Under current state law, a pharmacy may prescribe and dispense these contraceptives under a collaborative practice agreement with an authorized prescriber. Oregon has a similar measure in effect. (California, the only other state with such a law, issued regulations in early April.)
Expanding education on sexual coercion. Measures are pending in 17 states to incorporate education on dating violence or sexual assault into the sex or health education provided in the state. A bill has been approved by one legislative chamber in both New Hampshire and New York. The measure approved by the New Hampshire Senate would require age-appropriate education on child sexual abuse and healthy relationships for students from kindergarten through grade 12. The measure approved by the New York Senate would mandate education on child sexual abuse for students from kindergarten through grade 8. And finally, in March, Virginia enacted a comprehensive new law requiring medically accurate and age-appropriate education on dating violence, sexual assault, healthy relationships, and the importance of consensual sexual activity for students from kindergarten through grade 12. Virginia will join 21 other states that require instruction on healthy relationships.
Ongoing Assault on Access to Sexual and Reproductive Health Services
Even as many legislators are working to expand access to services, others are continuing their now years-long assault on sexual and reproductive health services and rights. Restricting access to abortion continues to garner significant attention. However, last year’s release of a series of deceptively edited sting videos targeting Planned Parenthood has swept both the family planning safety net and biomedical research involving fetal tissue into the fray.
Abortion bans. Legislative attempts to ban abortion fall along a broad continuum, from measures that seek to ban all or most abortions to those aimed at abortions performed after the first trimester of pregnancy or those performed for specific reasons.
Banning all or most abortions. Legislators in nine states have introduced measures to ban all or most abortions in the state, generally by either granting legal “personhood” to a fetus at the moment of conception or prohibiting abortions at or after six weeks of pregnancy. Only one of these measures, a bill in Oklahoma that would put performing an abortion outside the bounds of professional conduct by a physician, has been approved by a legislative chamber.
Banning D&E abortions. Legislators in 13 states have introduced measures to ban the most common technique used in second-trimester abortions. Of these, a bill in West Virginia was enacted in March over the veto of Gov. Earl Ray Tomblin (D). A similar measure was approved by both houses of the Mississippi legislature and is being considered by a conference committee. (Kansas and Oklahoma enacted similar laws last year, but enforcement of both has been blocked by court action.)
Banning abortion at 20 weeks post-fertilization. South Dakota and Utah both enacted measures seeking to block abortions at 20 weeks during the first quarter of the year. The new South Dakota law explicitly bans abortions at 20 weeks post-fertilization (which is equivalent to 22 weeks after the woman’s last menstrual period). The Utah measure requires the use of anesthesia for the fetus when an abortion is performed at or after that point, something that providers would be extremely unlikely to do because of the increased risk to the woman’s health. In addition to these new measures, 12 other states ban abortion at 20 weeks post-fertilization.
Banning abortion for specific reasons. In March, Indiana enacted a sweeping measure banning abortions performed because of gender, race, national origin, ancestry, or fetal anomaly; no other state has adopted such a broad measure. The Oklahoma House approved a measure to ban abortion in the case of a fetal genetic anomaly; the state already bans abortion for purposes of sex selection. Currently, seven states ban abortion for the purpose of gender selection, including one state that also bans abortion based on race selection and one that also bans abortion due to fetal genetic anomaly.
Family planning funding restrictions. In the wake of the Planned Parenthood videos, several states have sought to limit funding to family planning health centers that provide or refer for abortion or that are affiliated with abortion providers. These efforts are taking different forms across states.
Medicaid. Measures to exclude abortion providers (e.g., Planned Parenthood affiliates) from participating in Medicaid have been introduced in five states, despite the clear position of the federal Centers for Medicare and Medicaid Services that such exclusions are not permitted under federal law. In March, Florida Gov. Rick Scott (R) signed a Medicaid restriction into law. By the end of the first quarter, measures had passed one chamber of the legislature in Arizona, Mississippi, and Missouri; a measure introduced in Washington has not been considered. (A related measure enacted in Wisconsin in February limits reimbursement for contraceptive drugs for Medicaid recipients.)
Similar attempts by six other states have been blocked by court action since 2010. These measures include laws adopted by Indiana and Arizona as well as administrative actions taken in Alabama, Arkansas, Louisiana, and Texas.
Other family planning funds. Legislators in 13 states have introduced measures to prevent state or federal funds that flow through state agencies from being distributed to organizations that provide, counsel, or refer for abortions; the measures would also deny funds to any organization affiliated with an entity engaging in these activities. Measures in three of these states have received significant legislative attention. In February, Wisconsin enacted a measure directing the state to apply for Title X funds (the state is not currently a grantee under the program); if the state’s application were approved, the measure would ban this funding from going to organizations that engage in abortion care-related activity. A measure that would deny funds to organizations engaged in abortion care-related activity passed the Kentucky Senate in February. A similar measure in Virginia, which would both prohibit an abortion provider from receiving funding and give priority to public entities (such as health centers operated by health departments) in the allocation of state family planning funds was vetoed by Gov. Terry McAuliffe (D) in March.
Related funds. In February, Ohio Gov. John Kasich (R) signed a measure barring abortion providers or their affiliates from receiving federal funds passing through the state treasury to support breast and cervical cancer screening; sex education; and efforts to prevent infertility, HIV in minority communities, violence against women, and infant mortality.
Fetal tissue research. The Planned Parenthood videos have also led to legislation in 28 states aimed at research involving fetal tissue. Measures have passed one legislative chamber in four states (Alabama, Iowa, Idaho, and Kentucky), and new laws have been enacted in four states (Arizona, Florida, Indiana, and South Dakota) in the first quarter alone. All four laws ban the donation of fetal tissue for purposes of research. These new laws are the first to ever ban the donation of fetal tissue. The Arizona law also bans research using fetal tissue, and the new South Dakota law strengthens the state’s existing ban by now considering fetal tissue research as a felony; four other states (Indiana, North Dakota, Ohio and Oklahoma) have similar provisions in effect.
Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.
The Oklahoma Supreme Court on Tuesday ruled a state law that restricts access to medication abortion care does not violate the state’s constitution.
At issue is HB 2684, which was signed into law by Gov. Mary Fallin (R) in April 2014. The law prohibits the off-label use of the drug RU-486 (or mifepristone) and instead requires physicians to administer medication abortion drugs only in accordance with U.S. Food and Drug Administration (FDA) protocols.
HB 2684 bans all medication abortions after 49 days of pregnancy, forcing patients to undergo a surgical procedure when they otherwise would have the option of a medication abortion.
Attorneys for the Center for Reproductive Rights challenged the restrictions in September 2014. In October 2014 a state court judge failed to block the measure from taking effect, but the Oklahoma Supreme Court stepped in and did so while the legal challenge continued.
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Tuesday’s ruling determined HB 2684 did not violate the non-delegation doctrine of the Oklahoma Constitution. That provision prevents the state legislature from delegating its policy-making authority to administrative agencies. HB 2684 improperly grants Oklahoma legislative authority to the FDA, according to the plaintiffs. The Oklahoma Supreme Court rejected that argument, but sent the case back to the lower court to determine if the measure violated other provisions of the United States Constitution and Oklahoma Constitution.
“Oklahoma women should never be denied a safe way to end a pregnancy because politicians in their state are fixated on eliminating legal abortion,” Autumn Katz, senior staff attorney at the Center for Reproductive Rights, said in a statement following the opinion. “Oklahoma politicians continue to ignore medical evidence and the very real harms that will befall women in the state if they are unable to access safe and legal care.”
Despite Tuesday’s ruling, the measure will remain blocked while the litigation continues in state district court.