Oklahoma’s highest court has set the stage for a potential Supreme Court showdown over abortion; specifically, over the abortion pill, which allows women to terminate an early pregnancy without having a surgical procedure. The complicated case, Cline v. Oklahoma Coalition for Reproductive Justice, could come before the Roberts court this term. But you’ve probably never heard of it — and that’s exactly how the anti-choice community wants to keep it.
Ultimately, no matter what happens with the Supreme Court, this case illustrates a major prong in the anti-choice community’s state-level strategy. Abortion opponents aren’t necessarily attacking abortion directly anymore. Instead, they’re slipping their restrictions under the radar, quietly imposing sweeping bans on abortion without explicitly outlawing the procedure.
In order to understand this complex legal challenge, it’s important to back up a little. The case in question concerns a 2011 Oklahoma state law restricting the way that doctors are allowed to administer abortion-inducing medication. That law forces doctors to follow the FDA’s outdated protocol for the abortion pill, ignoring the fact that medical standards have evolved and doctors don’t think that’s the best practice for their patients anymore. After reproductive rights groups sued to overturn the medically unnecessary policy, Oklahoma’s Supreme Court ruled in their favor, deciding that the restriction on medication abortion was unconstitutional. The U.S. Supreme Court asked Oklahoma’s court to provide more details about why exactly it chose to strike down the law.
This week, the state complied. And the information that Oklahoma provided gives some insight into one of the most successful tactics that the anti-choice community currently has.
On Tuesday, the Oklahoma Supreme Court explained that the state-level restriction on medication abortion is actually a broad attack on reproductive rights. Essentially, the old FDA protocol requires a higher dosage of drugs and additional in-person trips to an abortion clinic, as well as narrows the window during which the medication may be taken. It will essentially impose additional barriers for low-income women, requiring them to scrape together more money and more time to navigate all of the red tape before they’re allowed to end a pregnancy. To make matters worse, the FDA also hasn’t technically approved one of the two drugs that are typically used in conjunction to induce a medication abortion, so it’s possible that drug would be banned entirely under this kind of restriction.
This all boils down to a simple fact: Even though it may not look like it on the surface, this law is actually a ban on medication abortion.
That’s not hyperbole. In fact, it’s actually what Oklahoma’s highest court concluded this week. The court interpreted the state law to mean that it would outlaw the second drug that’s used for medication abortions, which is the main reason the restriction amounts to a total ban. It’s problematic for other reasons, too. The state’s Supreme Court pointed out that 96 percent of the medication abortions performed in the U.S. don’t currently follow the old FDA protocol, which proves that it’s a pretty significant departure from accepted medical practice.
The Center for Reproductive Rights, the group that filed the legal challenge in the state, praised the Oklahoma Supreme Court’s decision. “In passing this law, politicians cast aside women’s constitutional rights along with years of research, evidence-based medicine, and doctors’ practical experience,” the group’s president, Nacy Northrup, said in a statement released on Tuesday. “We are confident that the nation’s highest court will respect the constitutional rights of women and 40 years of precedent by allowing the state court’s decision to strike down this cruel ban on medication abortion to stand.”
On the surface, of course, requiring abortion providers to adhere to FDA protocol simply seems logical. How could following the FDA’s rules end up banning the abortion pill? How could groups like the Center for Reproductive Rights be so opposed to that? It’s simply a common-sense way to make sure that patients are safe!
But that’s the whole point. It’s supposed to seem logical, and it’s not supposed to raise red flags in the same way that a radical abortion ban would. This is one of the most important strategies at the anti-choice community’s disposal: Piling on the state-level restrictions that don’t necessarily inspire outrage, but that end up having dire consequences for women’s access to abortion care. This is the exact same tactic that conservatives are using to shut down abortion clinics across the country, chipping away at access to reproductive health care by claiming they want to ensuring better standards to protect women’s health.
And just like clinic closures, restrictions on the abortion pill are quietly spreading throughout the country. The proliferation of these laws is bolstered by Americans United for Life, an anti-choice group that shops around draft legislation to conservative lawmakers. Aside from Oklahoma, 12 other states have also enacted restrictions on the way that abortion pill can be administered. Four have gone about it specifically by requiring doctors to follow the outdated FDA guidelines.
Whether the Supreme Court will actually decide to take up Oklahoma’s case is still an open question. If the justices are satisfied with the clarification they’ve received from Oklahoma’s court, they could simply let the decision stand without wading into the issue at all. If they do take it up, reproductive rights supporters aren’t necessarily confident that the Roberts court will rule in their favor.
And this question could still make its way to the Supreme Court through a different avenue. One of the other states that’s imposed abortion pill restrictions, Texas, is in the midst of a complicated legal challenge of its own. A federal judge there just issued an ambiguous opinion about the same type of law requiring FDA protocol for medication abortions. Texas officials have already asked for an emergency injunction to overturn the judge’s decision, and activists on both sides believe the issue could end up being decided in the Supreme Court.