In the Supreme Court’s last big abortion case, Justice Anthony Kennedy, writing for the majority, cited a single amicus brief out of 50 and drew a stinging rebuke from Justice Ruth Bader Ginsburg for invoking that brief’s “antiabortion shibboleth for which it concededly has no reliable evidence.” The brief’s author hopes once again to persuade Kennedy and a court majority in another abortion battle during the new term.
The last case was Gonzales v. Carhart, in which a 5-4 court in 2007 upheld Congress’ Partial-Birth Abortion Ban Act despite its lack of an exception for those abortions needed to protect the health of the mother. The decision essentially overruled the 2000 Stenberg v. Carhart, which struck down Nebraska’s partial-birth abortion ban and reaffirmed the need for a “health of the mother” exception.
In Carhart, Kennedy cited the amicus brief on behalf of Sandra Cano, “the former ‘Mary Doe’ of Doe v. Bolton, and 180 women injured by abortion” for the proposition that:
“While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”
There were no reliable data for that “antiabortion shibboleth,” Ginsburg retorted, and the majority compounded its condescension by saying that “because of women’s fragile emotional state and because of the ‘bond of love the mother has for her child,’ the Court worries, doctors may withhold information about the nature of the intact D&E procedure.” The majority’s way of thinking, she wrote, “reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.”
The amicus brief on which Kennedy relied was written by Linda Schlueter, who founded and runs the one-woman anti-abortion Trinity Legal Center in San Antonio, Texas. Schlueter is back in the new term’s abortion case—the rather oddly situated Cline v. Oklahoma Coalition for Reproductive Justice.
In Cline, the justices will consider for the first time the use of medications to end a pregnancy and whether an Oklahoma law substantially burdens a woman’s right to choose abortion. Although the court granted review, it certified two questions to the Oklahoma Supreme Court concerning the meaning of the state’s law. Whether the justices go forward with the case may depend on the state court’s answers. The state’s reply brief to the state Supreme Court was due on Wednesday.
Oklahoma law restricts the use of RU486 and any abortion-inducing drug to the protocol and drug label authorized by the Food & Drug Administration in 2000. Since that authorization, the medical community, through evidence-based scientific studies, has found off-label regimens superior to the FDA protocols in terms of safety and effectiveness. Off-label uses commonly and legally emerge as the medical community gains experience with FDA-approved drugs. Abortion supporters contend that the state law effectively bans all abortions using medications no matter how early in the pregnancy.
In the U.S. Supreme Court case, Schlueter has filed an amicus brief on behalf of “women and families hurt by RU486.” Mifepristone, formerly known as RU486, blocks the action of progesterone, which is needed to sustain a pregnancy. It is used in combination with another medication, called misoprostol, which causes the uterus to contract and helps to expel the pregnancy tissue.
Schlueter, a graduate of Baylor University School of Law, is a former law professor—from 1983 to 1994, she taught legal research and writing at St. Mary’s University in San Antonio. She left at a time, she said, when “there were a variety of issues going on at St. Mary’s. There were what were called tenure wars.”
She eventually joined The Justice Foundation, where she served in a variety of positions, including brief writer, staff attorney and vice president for legal affairs until leaving to open her own organization.
“I got involved with the pro-life issue back in 2000,” Schlueter recalled. “I saw what was happening with post-abortive women and it really touched my heart. They go through so many physical and psychological issues as result of their abortions.” Her briefs in the Supreme Court include affidavits from those women, many of whom have been solicited by her own nonprofit legal organization.
If the justices go forward with the Cline case, Schlueter’s brief will be countered vigorously, said Julie Rikelman, litigation director of the Center for Reproductive Rights in New York, which represents the challengers to Oklahoma’s law.
The statements in Schlueter’s briefs “are completely unsupported by the scientific evidence,” Rikelman said. “All of the major psychological organizations that have looked at the issue have said the harm does not exist—the Royal College of Surgeons in Britain, the American Psychological Association—these are esteemed people at top of their professions who sit on these review committees. This is just a scare tactic.”
Schlueter also points to a 2011 report by the FDA detailing 2,207 medical complications arising from RU486 in the United States, including hemorrhaging, blood loss requiring transfusions, serious infections and 14 deaths.
Of those deaths, Rikelman said, six had nothing to do with the medication abortion itself because the drug had been used some time in the past. The FDA and the Centers for Disease Control found no causal link between the medications and the remaining eight deaths.
“The deaths there arose from an infection,” she added. “It’s tragic when any woman dies, but infections can arise from a variety of surgical operations. Again, statistics can be misused. Medication abortion is extremely safe. It is recommended by the World Health Organization. Millions of women around the world have used it safely. It gives women a non-surgical option.”
Schlueter has traveled to Australia, Israel, Holland and other countries to deliver her message about abortion and the American experience. The travel, legislative testimony and collection of women’s abortion experiences make for a full time occupation, she said. ” It can a very emotional and tiring thing as well.”
She was asked to file an amicus brief in the Cline case by the amicus brief coordinator for the state’s position, but said she would have been involved regardless. And she rejects Ginsburg’s view in Carhart that the thinking behind that decision reflected long-discarded notions about women’s place.
“Quite the opposite,” Schlueter said. “We are saying we want women to be safe, protected, to know what it is they’re doing.”
The pro-choice movement cares very much about women’s health, Rikelman said, adding that laws like Oklahoma’s statute harm women because they require a medication protocol that is out of date and has been rejected by physicians as less effective and safe.
“Medication abortion with the two medications at issue has a safety rate equal to or better than Tylenol,” she said.
The debate continues, but for now, everyone awaits answers from the Oklahoma Supreme Court.
Contact Marcia Coyle at email@example.com.