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Okla. Abortion Case: Amicus Argues in Favor of Restrictive Statute

By William Peacock, Esq. on August 26, 2013 | Last updated on March 21, 2019

When the Oklahoma Supreme Court struck down a state law restricting medical abortions, it did so in a 388 word (including citations and headings) opinion. The cursory treatment of the case can be summarized as "this matter is controlled by ... Planned Parenthood v. Casey," which prohibits unreasonable restrictions on abortions.

That opinion left many questions unanswered. Indeed, when the U.S. Supreme Court granted certiorari earlier this year, the Court certified two questions to the Oklahoma Supreme Court: asking 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."

We covered the medical vocabulary and background of the case last week. Today, we'll start with the amicus briefs. The Oklahoma Supreme Court, having not addressed, well, anything, asked for amicus input on these two questions, and this amicus, by four doctors, provides that (and more).

The Irrelevant (To the Cert. Questions) Information

The issue before the Oklahoma Supreme Court is not a question of merits, or reasonableness, or constitutionality. The only issues before that court are the two certified questions.

To that end, the twenty pages of interesting and well-researched arguments on why the law is a reasonable restriction are irrelevant at the state level, though we'll briefly recap them, since they'll likely reappear at the SCOTUS level.

The brief cites multiple studies, including this one, to show that medical abortions after 49 days are more risky than surgical abortions or medical abortions performed sooner. It also cites studies that show that alternative dosages and treatment protocols that are considered off-label (and are banned by this statute) all bear increased risks, and were considered by the FDA when it approved the on-label regimen.

The Relevant Information

The initial question is whether the statute bars the use of misoprostol altogether. The statute, somewhat paradoxically, bans the use of any abortion-inducing drugs off-label, yet allows misoprostol use according to the FDA's combined label with methotrexate. (Alone, misoprostol is only labeled for stomach ulcers).

This was a bit of an odd question to begin with. Though the statute's provisions may seem contradictory, they arguably aren't. The RU-486 (misoprostol and methotrexate combination) FDA label makes the combined pre-49-days-pregnant regimen on-label, while odd dosages, drug substitutions, or use of only one of the two drugs for purposes of abortion would be off-label (and barred by statute).

The second of SCOTUS's questions asked whether the language of the statute prohibits the use of methotrexate to treat ectopic (tubal) pregnancies. Methotrexate is the only available non-surgical treatment for these life-threatening pregnancies. The amicus cites a number of definitions of pregnancies, including the definition used by Planned Parenthood, that all define pregnancy as the point where a fertilized pre-embryo implants in the uterus.

Because an ectopic pregnancy occurs outside of the uterus, it is not, medically, a "pregnancy." The statute, per its plain language, only applies to use of the drugs "with intent" to end a pregnancy.

Of course, these are the arguments of the statute's proponents. When we find the opponents' briefs, we'll recap those arguments as well.

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