Oklahoma Attorney General Scott Pruitt argues in a brief filed last week that his state’s law regulating medication abortion is not a universal ban on the procedure, but even if it were, such a ban would be constitutional, The Oklahoman reports.
The brief was submitted to the Oklahoma Supreme Court in response to questions asked by the U.S. Supreme Court about Cline v. Oklahoma Coalition for Reproductive Justice, a case the Roberts Court is considering adding to its docket that challenges a 2011 Oklahoma law that purports to ban the off-label use of medicines for the purposes of ending a pregnancy. The Oklahoma law directs doctors to only prescribe RU-486 or any other “abortion-inducing drug” as authorized by the protocol spelled out on the Food and Drug Administration (FDA) approved label. The U.S. Supreme Court has expressed an interest in weighing in on whether or not states may go as far as Oklahoma in regulating, or banning altogether, specific abortion procedures.
The Oklahoma law was originally challenged in state court, where a coalition of reproductive rights supporters argued that the law is so badly drafted that it would effectively ban the use of all medication abortion pills, including preferred treatments for safely ending an ectopic pregnancy. Furthermore, the challengers argued, even if some medications fall outside the ban, the law’s requirement that practitioners follow FDA protocol in administering those medications place women’s health significantly at risk, since those protocols are severely outdated and subject patients to dosing requirements that can be as much as three times the necessary amount. A lower court agreed, and struck down the law, blocking its enforcement.
Attorneys for the State of Oklahoma appealed to the state supreme court and argued that the law does not effectively ban the use of RU-486 nor does it forbid the use of methotrexate to end ectopic pregnancies. But instead of ruling on those specific issues, the supreme court, in a brief opinion, ruled that the state law conflicted with federal Supreme Court rulings protecting a woman’s constitutional right to choose abortion and upheld the lower court’s decision to block the law.
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In June, the U.S. Supreme Court agreed to review the challenge, but not until the state supreme court clarified which medications are regulated under the law.
In his brief, Attorney General Pruitt defended the law, claiming the law requires providers to follow the FDA protocol, given “concerns” over the safety of off-label use of drugs like mifepristone to induce abortion, and is therefore not a ban on the procedure. Furthermore, Pruitt argued, the Supreme Court has previously upheld bans on specific abortion procedures like the federal “partial-birth abortion” ban, so even if the 2009 Oklahoma law does ban all medical abortions, it should still be considered constitutional.
Once the state supreme court clarifies this question of whether the law is a total ban, the Roberts Court will decide whether to consider the matter further.