It was easy to miss, given the hoopla surrounding decisions handed down by the U.S. Supreme Court earlier that week. But on June 27, a day after wrapping up its term, the court agreed to hear an abortion case out of Oklahoma that some say will test the very underpinnings of abortion rights set out in the landmark 1992 Planned Parenthood v. Casey decision.
At issue in Cline v. Oklahoma Coalition for Reproductive Justice is an Oklahoma law that requires doctors to follow FDA dosage and other requirements for medical abortion pills (“RU-486”). Though seemingly innocuous, the law is actually a riff on the “we’re not banning abortions, we’re protecting women’s health” tune we heard in the General Assembly this past session. The trouble is that since the FDA adopted those requirements in 2000, the medical profession has refined the procedure and actually lowered the dosage and allowed women in some instances to complete the pill regimen at home. In effect, then, the Oklahoma law is compelling doctors to take steps they now deem unnecesary and in some cases dangerous.
Linda Greenhouse in today’s New York Times Opinionator blog sums it up this way:
The problem is that after 13 years, with millions of medical abortions having been provided in Europe and Asia as well as the United States, medical opinion about the appropriate dosage and other aspects of administering the drugs has evolved, as it often does after a new medication enters widespread use. Instead of 600 milligrams of Mifeprex, doctors now use only 200. While the original F.D.A. label specified that the drugs should be used only up to 49 days of pregnancy, doctors have found the regimen safe and effective for up to 63 days — nine weeks of pregnancy. Instead of requiring a second office visit for the second drug, as specified by the F.D.A., doctors now often give the patient the second drug to be taken at home, saving her an unnecessary trip. The 200-milligram regimen is so widely accepted that the 600-milligram dose is now considered bad medicine, and many doctors would refuse the procedure entirely rather than follow the old guideline.
What makes this case procedurally so dangerous, Greenhouse later explains, is that it comes to the court on a relatively clean slate. An Oklahoma trial court judge threw out the law, finding it “so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those women who do.”
And though the state Supreme Court upheld that decision, it did so without analysis, saying in just three short paragraphs that “this matter is controlled by the United States Supreme Court decision in Planned Parenthood v. Casey . . . [a decision that] remains binding on this court until and unless the United States Supreme Court holds to the contrary.”
That statement may just have been an invitation for the high court to revisit its ruling in Planned Parenthood v. Casey, Greenhouse speculates — one that it has now accepted.