The U.S. Supreme Court on Monday sidestepped what could have been its first look at medication abortions by dismissing a confrontation over an Oklahoma law restricting the use of drugs to terminate pregnancies. But the justices are unlikely to avoid re-entering the abortion arena this term.
The justices, without comment, issued an order dismissing Cline v. Center for Reproductive Justice as “improvidently granted.” The order leaves in place a ruling by the Oklahoma Supreme Court striking down the state law as an undue burden on a woman’s right to choose to have an abortion.
Oklahoma Attorney General Scott Pruitt, who filed the appeal in the U.S. Supreme Court, said in a written statement: “Given the Oklahoma Supreme Court’s overly broad and erroneous interpretation of the Oklahoma law, the U.S. Supreme Court had little choice but to dismiss the case. We are disappointed with the state court’s interpretation of a law that was crafted by the Legislature to protect Oklahoma women from potentially deadly protocols that have never been approved by the FDA.”
But Julie Rikelman, litigation director of the Center for Reproductive Rights, which filed the original challenge to the Oklahoma law, said the justices’ action lets stand a ruling by a state supreme court saying the law in Oklahoma was unconstitutional under federal law.
The justices already have another abortion case on their docket. They have agreed to hear a challenge to Massachusetts’ 35-foot buffer zone around abortion facilities. And on Monday, Planned Parenthood of Greater Texas and a number of clinics and physicians asked the court for an emergency order to block a state law requiring doctors who perform abortions to have admitting privileges at a hospital within 30 miles of where the abortion is performed.
The emergency application in Planned Parenthood of Greater Texas v. Abbott was filed with Justice Antonin Scalia, the circuit justice for the U.S. Court of Appeals for the Fifth Circuit, which had lifted a stay. Scalia has asked the state to respond by 4 p.m. on November 12.
The high court’s order in the Oklahoma case came less than a week after the Oklahoma Supreme Court, at the request of the justices, clarified its decision last December invalidating the state abortion law.
The state law required physicians to prescribe abortion-inducing drugs according to the protocol approved by the Food and Drug Administration (FDA). The FDA in 2000 had approved the use of mifespristone, also known as RU-486, in combination with a second drug, misoprostol, to end pregnancies. But research since 2000 has produced evidence that the drugs may be used safely in lower doses later in pregnancy than called for on the drugs’ labels. This so-called off-label protocol is now the most common use of the two drugs worldwide.
The state high court’s ruling in December was brief, saying only that the law violated the 1992 U.S. Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a decision that announced the undue burden standard for judging abortion regulations.
Because of the state court’s brevity, the U.S. Supreme Court asked the state court to clarify its ruling about how the abortion-inducing drugs actually worked. The state court answered last week, explaining that the law effectively banned nonsurgical abortions, including the use of the drugs to terminate ectopic pregnancies.
Although the justices gave no reason for dismissing the Oklahoma case, which it had agreed to review last summer, Rikelman suggested several possible motivations. The Oklahoma Supreme Court had made clear that the state law amounted to a total ban on medication abortions, she said, and the state had never defended the law as constitutional if it constituted a complete ban.
Additionally, the state’s claim of a split of authority between its state supreme court and a ruling by the U.S. Court of Appeals for the Sixth Circuit, which has upheld a similar law, was cleared up by the Oklahoma Supreme Court’s explanation, she speculated.
“There are a lot of reasons why the case was less cert-worthy after the Oklahoma Supreme Court decision last week, even if it were cert-worthy before,” she said.
Oklahoma is one of five states with similar restrictions on the use of medication abortions. Rikelman’s organization has brought a challenge to North Dakota’s law and won at the trial level. The state has appealed that ruling.
Contact Marcia Coyle at firstname.lastname@example.org.