Saturday, September 14, 2013

Oklahoma's Medical Abortion Law

After a summer of landmark Supreme Court decisions, we can already look forward another controversial case in the Court's next term. On June 27th the Court agreed to hear Cline v. Oklahoma Coalition for Reproductive Justice, in which the state of Oklahoma seeks to overturn the state Supreme Court's decision to strike down a law limiting medical abortions. What some find most remarkable about the Oklahoma law is its seeming reasonableness. Medical abortion (or medication abortion) is a nonsurgical method of ending a pregnancy. As Emily Bazelon explains in Slate, medical abortion allows women to have an induced miscarriage at home within the first several weeks of pregnancy, rather than a procedure in a medical facility. In some rural areas doctors are able to prescribe RU-486, the medical abortion drug, remotely (over the phone or via teleconference). This opens up access to medical abortions to women who live prohibitively far from a doctor. With that background, consider what the Oklahoma law does. First, it requires that a doctor be present when the drug is administered, (i.e. the drug can't be administered at home). Second, it requires that the doctor follow FDA protocol for prescribing RU-486. It does seem reasonable, but as Bazelon points out, it's often not how real medicine works. According to Bazelon's article, as many as half or more of all prescriptions are written "off-label," meaning that drugs are prescribed for a purpose other than what they are FDA approved to do. This is generally legal in the U.S., but the Oklahoma law makes it illegal in the case of RU-486.

It is easy enough to write off laws like this as somebody else's problem, the work of radicals in a red state. The Oklahoma legislature is overwhelmingly Republican in both houses. And the Republicans have considerably more party leadership positions, signaling strong party control. It is therefore no surprise, looking at the median voter theorem, that such a seemingly radical bill passed. With only about 25% of the seats in the Oklahoma House of Representatives, for instance, it would be nearly impossible for Democrats to push back against the Republican agenda, let alone move forward with their own. The fact that this case has moved up to the Supreme Court provides a needed reminder of the relevance of state legislatures and state laws on a national level. The states are supposed to be able to experimental in their laws, and the multiplicity of choices they make can influence and inform other states' governance and national policy. Here, however, as Linda Greenhouse alluded in the New York Times earlier this month, a challenge to a restrictive state law has provided an opportunity to walk back decades of abortion rights jurisprudence. As Greenhouse puts it, 
"With Justice O’Connor replaced by Justice Samuel A. Alito Jr., there may no longer be a majority on the court to strike down any burden on access to abortion, even one that is obviously and purposefully “undue.” All that binds the current court to the Casey standard — whatever that standard can be said to mean today — is stare decisis, respect for precedent. As the Roberts court begins Year 9, that may not count for much."
The repercussions of state laws can be felt on a national level, a fact which should be taken account in any good policy analysis.

Works Cited


  1. With Republican control of both houses of state legislature, it is not surprising that this bill was easily passed on the state level. With such a large majority, there are fewer liberal voices to push the bill to a more moderate position. I believe even with a large majority it would be advantageous to work with the minority party to ensure a more moderate outcome, since the Casey precedent is a factor and abortion is a major issue for both parties- any extreme change will cause backlash from the opposing party (a more moderate bill would decrease the chances of it being taken all the way to the Supreme Court and possibly be overturned). Although the Oklahoma bill does not seem too extreme, it will be interesting to see how this Supreme Court defines "undue burden" in this instance (Casey precedent), or if they deem RU-486 unsafe.
    Steph Langella, Sept. 17

  2. First of all, I am excited by the opportunities this new type of abortion medication implies for women who may currently struggle to go to a clinic to receive an abortion.

    That being said, I am curious to see how the Supreme Court will use the Constitution in their rulings. Maybe it is my liberal leanings but I do not know how they can rule in favor of Oklahoma because of the right to privacy granted by past Supreme Courts. If they do rule in favor of Oklahoma, there will be widespread consequences for the drug industry at large. If they rule that this one drug must be prescribed following FDA protocol, other drugs will need to follow this rule as well. This rule also forces women to take the drug in front of a doctor which implies that a wider range of drugs could also fall into the category. The Supreme Court would not be able to rule only on abortion medication because that is not in the jurisdiction of the federal government to control private actions. It will be interested to see what happens in the future.