WASHINGTON — Oklahoma’s high court set the stage Tuesday for the U.S. Supreme Court to rule this term on an abortion dispute over whether states may restrict doctors from prescribing the two drugs that are commonly used by women who seek an abortion in the first weeks of their pregnancy.
The Oklahoma case could be the first test of whether the court’s conservative majority will uphold the new state laws that seek to strictly regulate legal abortions.
The legislatures in Oklahoma, Texas and several other states have adopted laws that require doctors to follow the Food and Drug Administration’s protocols for the use of “any abortion-inducing drug.” The laws forbid doctors to prescribe medications for “off-label use.”
Sponsors of the laws said they wanted to protect the health of women. But medical experts and supporters of abortion rights said the law would effectively ban medication abortions because the FDA protocol is outdated and conflicts with current medical practice.
Only one drug — mifepristone or RU-486 — was approved by the FDA in 2000 for inducing early abortions. In the last decade, however, physicians have regularly prescribed a second drug — misoprostol — to complete such abortions through nine weeks of a pregnancy. They also have prescribed RU-486 in much lower dosages.
When the doctors sued to challenge the state law, the Oklahoma Supreme Court ruled it unconstitutional last year in a three-paragraph opinion. The state’s attorney general appealed to the U.S. Supreme Court and argued the state judges had invalidated a reasonable law designed to regulate the safe practice of medicine.
In June, the federal justices took an unusual step. They tentatively agreed to take up the Oklahoma case, but first asked the Oklahoma court to clarify whether the 2011 state law “prohibits … the use of misoprostol in conjunction with mifepristone.”
In Tuesday’s opinion, the Oklahoma court said the state law, as written, does indeed prohibit the use of the second drug. It “effectively bans all medication abortions,” the state court declared. The judges explained that misoprostol was an abortion-inducing drug, and noted the FDA had not approved its use for that purpose.
The judges also noted that a third drug — methotrexate — is commonly used to terminate early ectopic pregnancies. But because the FDA has not formally approved its use for that purpose, it may not be prescribed by doctors in Oklahoma, the judges said.
Nancy Northup, president of Center for Reproductive Rights, praised the Oklahoma court’s decision. It “strongly reaffirms that this blatantly unconstitutional law was designed to not only rob women of the safe, legal and effective option of medication to end a pregnancy at its earliest stages, but also threaten the health, lives and future fertility of women suffering ectopic pregnancies.”
Now that the Oklahoma court has clarified the state law, the justices will decide whether to grant a full review. Lawyers noted that a similar Ohio law was upheld by a federal appeals court.
[For the record, 5:28 p.m.: A previous version of this post said, "The judges explained that mifepristone was an abortion-inducing drug, and noted the FDA had not approved its use for that purpose." The judges was referring to misoprostol.]