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SCOTUS to Review Regulation of Abortion-Inducing Drugs

By Betty Wang, JD on October 08, 2013 | Last updated on March 21, 2019

Since it is SCOTUS week, we'll be covering various cases from the circuits that were granted cert. Coming out of Cline v. Oklahoma Coalition for Reproductive Justice is the key abortion-related question of regarding an Oklahoma law pertaining to abortion-inducing drugs.

This already on SCOTUS' docket, but is pending a response from the Supreme Court of Oklahoma, according to The New York Times.

What has occurred with Cline, and what is the issue, though? Here's a general overview.

Cline v. Oklahoma Coalition for Reproductive Justice

Oklahoma passed a statute in 2010 which dictated special requirements on drug-induced, or medical, abortions. These were different from those that generally applied to all abortions. However, in 2011, Oklahoma then enacted amendments that stated, in relevant part, that off-label use of drugs in abortions could only be administered in the manner and dosages as authorized by the Food and Drug Administration (FDA), which had first approved their use in 2000.

The term "off-label" essentially applies to any treatment protocol not approved by the FDA. However, according to the Times, using off-label drugs is a very common practice -- accounting for almost a fifth of the country's abortions.

In turn, the plaintiffs sued to enjoin the statute, claiming that it had the primary purpose and effect of substantially curtailing women's access to medical abortions. The trial court granted summary judgment in favor of the plaintiffs.

The Oklahoma Supreme Court then affirmed in a rather brief opinion containing three paragraphs of a unanimous per curiam decision, stating that the case was facially unconstitutional, and entirely bound by Planned Parenthood v. Casey.

SCOTUS to Assess Constitutionality After Clarification

The state, in its application for cert, claimed that the Oklahoma Supreme Court had misread Casey, among other contentions. SCOTUS, in turn, granted certiorari earlier this year, though pending receipt of a response from the Supreme Court of Oklahoma, first. Clarification, stated SCOTUS, is required on two issues:

  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 ectopic pregnancies.

Further proceedings in this case are reserved pending receipt of a response from the Supreme Court of Oklahoma.

Once SCOTUS gets answers on these, they'll determine whether the Oklahoma Supreme Court erred in holding that the relevant statute was facially unconstitutional under Casey.

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