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Okla. Supreme Ct. Answers: RU-486 Law Bans Medical Abortions

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By William Peacock, Esq. on October 30, 2013 4:22 PM

The Oklahoma Supreme Court once again addressed the state's sloppily-drafted law regulating (or banning) drug-induced abortions, and this time, the opinion was longer than three paragraphs.

After the state court dispatched the law with a series of citations and unelaborated assertions, the U.S. Supreme Court granted conditional certiorari in the case, pending the receipt of answers to two certified questions to the state court.

The answers are in, and for state lawmakers and pro-life advocates, they aren't good.

On the bright side, the court's holding that the law effectively banned, rather than reasonably regulated, medical (drug-induced) abortions conflicts squarely with the Sixth Circuit's take on a nearly-identical Ohio law. That makes a certiorari grant more likely, and for both sides of the debate, the chance to make their arguments controlling law.

Background and Questions Certified

Oklahoma's poorly-worded law bans off-label use of abortifacients for purposes of inducing an abortion. The ambiguous definitions and confusing vocabulary have been interpreted narrowly (to only ban the usage of certain drugs in a manner inconsistent with the FDA label for a two-drug medical abortion) and broadly (banning the drugs for nearly everything, including life-threatening ectopic pregnancies).

The Supreme Court asked Oklahoma's court to clarify whether the statue "prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat eptopic [sic] pregnancies."

Questionable Statutory Construction

The answer, according to the Oklahoma Supreme Court, was affirmative on both points.

The statute bans any off label-use of abortion-inducing drugs, which are defined to specifically include misoprostol. Misoprostol, alone, is only approved to treat stomach ulcers (though the RU-486 FDA label approves the use of misoprostol and methotrexate together for medical abortions, creating a bit of an on-label and off-label paradox). According to the court's interpretation, any use other than for stomach ulcers, is off-label and prohibited by statute.

As for ectopic pregnancies, the state court noted that while ectopic pregnancies are excluded from the definition of abortion in one section of the statute, they aren't excluded or referenced in the "abortion-inducing drug" definition. The lack of exclusionary language indicates that the Legislature intended to ban the off-label use of methotrexate (the only non-surgical treatment for ectopic pregnancies) altogether.

Interestingly enough, the court didn't address the intriguing argument that ectopic (tubal) pregnancies were not covered by the statute because, by definition, a pregnancy doesn't begin until the embryo implants in the uterus. Per the law's proponents' arguments, a drug doesn't end a "pregnancy" if the pregnancy never technically existed.

Also interesting was the court's pages of rambling about the benefits of off-label treatment and its holding that the law effectively banned medical abortions, stating that the law "is so completely at odds with the standard that governs the practice of medicine that it can serve no purpose except to prevent women from obtaining abortions and to punish and discriminate against those who do."

Much of the opinion echoed the arguments made in the opposition to SCOTUS certiorari that we covered earlier, but right or wrong, the rambling really had nothing to do with the two certified questions posed by the U.S. Supreme Court.

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