Saturday, June 29, 2013
Guest Blogger Professor Jessie Hill: Supreme Court grants cert in Cline v. Oklahoma Coalition for Reproductive Justice
For the past nine years, I have been litigating (together with attorneys from Planned Parenthood) the constitutionality of an Ohio law that requires physicians prescribing the abortion-inducing drug mifepristone (RU-486, which was approved by the FDA in 2000 and can be used safely to terminate pregnancy until at least 9 weeks of pregancy) to follow a particular, outdated protocol. On Thursday, the Supreme Court granted certiorari in an Oklahoma case raising almost identical issues. Because of some uncertainty about the meaning and scope of the state law, however, the Supreme Court took the unusual step of certifying two questions to the Oklahoma Supreme Court and suspending all proceedings (including, presumably briefing), until the Oklahoma court responds. This raises the possibility that the Court might end up dismissing the case, or that it won’t get argued this Term. But the case raises important, novel, and fascinating issues that most likely will ultimately be aired before the Court.
The Oklahoma law prohibits the “off-label” use of any “abortion-inducing drug.” There are several problems with this. First, insofar as it appears to require that RU-486 be prescribed in accordance with the protocol outlined in the FDA labeling, that protocol is severely out-of-date. It was the protocol used during clinical trials in the 1990s, and virtually no physician uses it today (unless state law requires it). Notably, the FDA labeling protocol specifies that women take three times more of the drug mifepristone than they actually need to take under the current, evidence-based protocol. It also requires women to return for additional visits to the clinic, which they otherwise do not need to make. (In the Oklahoma case, there is also some question whether the law also completely prohibits the use of misoprostol, which is used in conjunction with mifepristone to complete the abortion, and methotrexate, which is often used to terminate ectopic pregnancies).
Assuming the law’s doesn’t outlaw use of misoprostol and methotrexate but does require women to follow the outdated RU-486 protocol (an issue that the Oklahoma Supreme Court will clarify), the problems are that the off-label prohibition makes the drug more expensive, increases side effects, requires additional visits to the clinic, and makes takes the medication abortion option off the table for women between 7 and 9 weeks of pregnancy, for whom it would be safe and effective. But is it unconstitutional? I believe there are strong arguments that these factors, certainly in combination, could constitute an “undue burden” under Planned Parenthood v. Casey. In addition, there is a strong argument that, by forcing some women to have a surgical abortion when a safe, medical option is available, the law impinges on women’s fundamental right to bodily integrity. Finally, the Constitution requires a health exception, allowing the drug to be used for some women for whom it is safer than surgical abortion (such as women with anatomical anomalies or obesity). Time will tell whether the Supreme Court agrees.