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Everything You Need To Know About The Abortion Case That’s Headed To The Supreme Court

By Tara Culp-Ressler  

"Everything You Need To Know About The Abortion Case That’s Headed To The Supreme Court"

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A pharmacist holding abortion-inducing drugs

A pharmacist holding abortion-inducing drugs

CREDIT: AFP/Getty Images

If you had no idea that abortion was slated to come before the Supreme Court this year, you’re not alone. The complicated case that’s up for debate, Cline v. Oklahoma Coalition for Reproductive Justice, has flown under the radar precisely because it’s fairly complex and doesn’t immediately seem to be all that important. But it could have huge implications for the current laws in over a dozen states across the country — and depending how the justices rule, it could ultimately set the precedent for the future of the entire United States’ access to reproductive health care.

Here’s what you need to know about the potentially landmark case:

It centers on Oklahoma’s procedure for administering the abortion pill.

In 2011, Oklahoma’s governor approved a state law that restricted the way that doctors could administer abortion-inducing medication. The law requires doctors to follow the FDA’s strict protocol for administering the abortion pill, medically known as mifepristone, even though doctors say that protocol is now outdated by current medical standards. The FDA released its guidelines for mifepristone back in 2000, and since then, doctors have found it’s just as effective when prescribed at lower dosages and up to nine weeks of pregnancy. This type of evolving medical practice is very common, and it’s not unusual at all for drugs to be prescribed for off-label use; more than 20 percent of outpatient drugs are administered this way. Nonetheless, Oklahoma’s law requires doctors to use the higher dosage of mifepristone and administer the pill within seven weeks of pregnancy.

This case illustrates just how effective the conservative fight against abortion has been.

Requiring doctors to follow FDA protocol for prescribing abortion pills sounds like an extremely logical law. It must be an important method to keep patients safe, right? But as Slate’s Emily Bazelon explains, that’s not actually how the rest of the industry operates, and “to act otherwise in the case of medical abortion is to treat the doctors who prescribe these drugs — and their patients — as some lower, suspect class.” This speaks to two popular anti-choice tactics that have both been incredibly successful. First, abortion opponents have succeeded at segregating abortion from the rest of of reproductive health care, and holding it to a higher standard than other types of medical practice. Second, restrictions on abortion access are often able to gain support because they’re framed in terms of patient safety — even though they don’t actually do anything to accomplish that goal. Abortion clinics are currently being forced to close at a record pace because the anti-choice community has done such a good job with this second framing device.

Oklahoma’s law doesn’t outright ban the abortion pill, but it doesn’t matter. It still seriously compromises women’s access to early abortion care.

Placing restrictions on the abortion pill may not seem like a serious attack on reproductive access, but don’t be fooled. The additional red tape can have serious consequences for women who want to have a non-surgical abortion during their first trimester of pregnancy. In other states that have enacted laws similar to Oklahoma’s, the price of the abortion pill has gone up because women are being forced to pay for an unnecessarily high dosage of mifepristone. Women are also being forced to make extra trips to the doctor’s office, because the old FDA protocol requires them to make two follow-up appointments that doctors don’t think are actually necessary — an expense that many low-income women simply can’t afford. And some of these state laws have forced clinics out of business because it’s too risky for them to continue administering the pill when there are so many new restrictions surrounding it. That’s why the Oklahoma Coalition for Reproductive Rights sued to block the 2011 law.

Reproductive rights advocates didn’t expect the Supreme Court to take up the case.

The Oklahoma Coalition for Reproductive Justice won its lawsuit. When the state appealed it and the case went to the Oklahoma Supreme Court, the group won again. But the state’s highest court issued an extremely narrow opinion that didn’t explain its rationale for striking down the law, so the state appealed to the U.S. Supreme Court to get more clarification. Since the two lower courts had both been in agreement about getting rid of the law, women’s health experts didn’t expect the Supreme Court to take up the case. But in June, the Supreme Court surprised them by adding it to the docket. “All of this is making abortion rights advocates nervous, because the restriction was struck down, and to revisit it brings into question what might be permissible around medication abortion restrictions,” Elizabeth Nash, the state issues manager at the Guttmacher Institute, told Mother Jones.

This all matters because restrictions on the abortion pill are steadily spreading across the country.

Oklahoma is hardly the only state to attempt to restrict access to first-trimester abortions in this way. Bolstered by Americans United for Life, an anti-choice group that writes draft legislation for state-level abortion restrictions and shops it around to conservative lawmakers, multiple legislatures across the country have moved to enact their own measures. By Guttmacher’s count, 14 states have imposed unnecessary restrictions on medication abortion, either by requiring doctors to adhere to the old FDA protocol or by requiring a doctor to be physically present when women take the pill. Just at the end of last month, Iowa became the latest state to threaten access to the abortion pill by arbitrarily tightening the standards for administering it. Like Oklahoma’s law, many of these initiatives are complicated and don’t immediately seem like a real threat to reproductive rights. That’s the point. And if the Supreme Court weighs in on Oklahoma’s law, it will obviously have a big impact on the laws in those other states, too.

But wait! There’s still a chance that the Supreme Court will proceed in a way that doesn’t involve arguing this case.

Making matters more complicated still, it’s not necessarily guaranteed that the Supreme Court will proceed with oral arguments in this case, even though it’s added it to the docket. Oklahoma is basically asking for more clarification about why its state-level Supreme Court struck down the law. At this point, the U.S. Supreme Court has asked the lower court for more information about that. If the justices are satisfied with the response they receive from the state court, they might simply dismiss the case and allow the lower decisions to stand. Or, they might decide they want to go on to hear the case themselves. But if they choose the second option, the Robert Court‘s decision to wade into abortion policy may not end very well for supporters of reproductive rights.

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