The Obscure State Law That Could Land Abortion Rights In Front Of The Supreme Court

CREDIT: AP Photo/Pablo Martinez Monsivais

On Wednesday, the Center for Reproductive Rights and Planned Parenthood filed a federal lawsuit against the state of Arizona, seeking to overturn a new law that restricts the use of abortion-inducing drugs. Attorneys for the groups are arguing that Arizona’s law unconstitutionally limits women’s access to the abortion pill. And depending what happens with their case, this issue could end up coming before the highest court in the country.

The law in question will require doctors to adhere to the FDA’s strict protocol for administering the abortion pill — the non-surgical, medication-induced method of terminating an early pregnancy. Unless the legal challenge is effective, the new policy will take effect this April.

Arizona’s law appears to be logical enough upon first glance. After all, shouldn’t doctors be following FDA guidelines in order to ensure their patients’ safety? Well, not quite.

In reality, the guidelines for the ingredients in the abortion pill were released back in 2000, and doctors say they’re now extremely outdated. Women who want to end a pregnancy can safely and effectively take a much lower dosage than the FDA recommends, so that’s how doctors are administering the pill. And this dynamic is hardly specific to abortion. Drug companies don’t always go back to the FDA to complete the complicated and expensive process of re-lableing their products, even if the medical standards evolve, so it’s actually very common for doctors to follow an off-label protocol for prescribing medications.

That’s why the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) both oppose these state laws. “Legislators should not block advances in medical care by prohibiting physicians from incorporating the best, and most current, scientific evidence into their patient care. Requiring physicians to follow a protocol that is scientifically proven to be inferior to other regimens is an unwarranted intrusion in the physician-patient relationship,” the professional medical associations write.

Making matters even worse, state laws restricting medication abortion are often written very vaguely. It’s not clear exactly how doctors in Arizona are supposed to interpret the new requirement to stick to the FDA’s guidelines, because there are two different medications in the abortion pill — one that’s approved by the FDA, and one that’s not. If doctors have to defer to federal health officials, does that mean they can’t prescribe abortion-inducing pills at all?

“In addition to forcing doctors in Arizona to practice medicine in a way that goes against the research-driven guidelines by experts in women’s health, this regulation could deprive Arizona women of access to medication abortion altogether,” Bryan Howard, the president of Planned Parenthood Advocates of Arizona, explained in a statement.

So how does this all relate to the Supreme Court? It’s because this isn’t the first law of its kind that’s been subject to a legal challenge — and the outcomes have been mixed. A very similar restriction on medication abortion was struck down by the Oklahoma Supreme Court last year (and the Supreme Court declined to review that case in November, allowing that decision to stand). Meanwhile, Ohio’s Supreme Court upheld a law limiting the use of the abortion bill, and the U.S. Court of Appeals for the Sixth Circuit affirmed that decision. On a lower level, a district judge upheld most of a similar law in Texas this past October.

If the fairly liberal Ninth Circuit — which has struck down other anti-abortion laws in Arizona — rules in favor of the reproductive rights groups, that could pave the way for abortion rights to come before the Supreme Court.

There are some caveats. The Sixth Circuit ruled that Ohio’s law doesn’t ban medication abortions altogether, and upheld the FDA regulations for administering the pill. In order for there to be a clear circuit split, the Ninth Court will have to agree that the Arizona law isn’t intended to ban all medication abortions entirely — but strike it down anyway, specifically because of the unnecessary FDA-approved protocol. It if gets struck down for constituting a total ban on medication abortion, that won’t count as a true split.

David Brown, the Center for Reproductive Right’s attorney on the Arizona case, explained to ThinkProgress that this has become such a complex issue because the state-level restrictions on medication abortion aren’t identical. Politicians simply aren’t medical professionals, so they don’t necessarily realize that small tweaks in these measures’ language can have big impacts for the doctors who have to put them into practice.

“These laws are detailed. The states that have considered them have considered slightly different versions of the law,” Brown noted. “The laws are often so vague that it’s impossible for lawyers to tell whether they regulate the use of abortion pills or ban them altogether — so they have to go to court to try to change the language of the law to make it clearer.”

Thanks to the right-wing group Americans United for Life (AUL), which writes draft legislation for anti-choice laws and shops it around to conservative lawmakers, many abortion restrictions are identical across different states. But not in this case. Even though 14 states have adopted some type of restrictions on the way doctors may administer the abortion pill, just five have attempted to mandate the outdated FDA policy, and many of those laws vary slightly.

“We win cases, and they change their wording. The harshest provisions of these type of laws have been deleted from Americans United for Life’s playbook,” Brown explained. The Center for Reproductive Rights spearheaded the successful legal challenge against Oklahoma’s abortion pill restriction.

Before deciding whether to challenge a harsh state law in court, reproductive rights groups often have to make very calculated decisions depending on the potential outcomes of that lawsuit. Sometimes, the goal is actually to avoid provoking a Supreme Court challenge, since abortion rights are on somewhat precarious footing in the Roberts Court.

When asked whether the Center for Reproductive Rights is specifically hoping for Arizona’s law to go all the way to the Supreme Court, Brown deferred, although he acknowledged the group isn’t naive about what could end up happening.

“Well, we didn’t want Arizona to pass this law. We didn’t want to be in this position in the first place, and we argued against it when it came before the legislature — but now we have a responsibility to protect reproductive rights,” Brown explained. “We’re going into this with clear eyes. We know the possibility of a Supreme Court challenge is always lurking.”