A gloomy forecast, by Linda Greenhouse:
Justice Anthony M. Kennedy, author of the 5-to-4 opinion in June that struck down the Defense of Marriage Act, may well be a hero to the gay rights community, and deservedly so. But he’s also the author of the 5-to-4 opinion that upheld the federal ban on so-called partial birth abortion back in 2007, and abortion-rights advocates have viewed with something close to dread the prospect that he could play a similarly decisive role in the Supreme Court’s next abortion case.
That case has arrived.
It’s understandable if you haven’t heard of Cline v. Oklahoma Coalition for Reproductive Justice, which has received relatively little attention since the court accepted it on June 27, the day after the term ended. The lack of attention is itself understandable.
The case is an appeal by the state of Oklahoma from a ruling by its Supreme Court striking down a law that limits doctors’ ability to prescribe the pills used to terminate early pregnancies. The medical abortion regimen, often referred to as RU-486, was approved by the Food and Drug Administration in 2000 as a safe and effective alternative to surgical abortion early in the first trimester. It has been used since then by close to two million American women, currently about 200,000 a year out of some 1.2 million abortions performed annually. The Oklahoma law doesn’t ban the medical procedure. Rather, it requires doctors to follow the dosage and other instructions on the F.D.A. label. Viewed outside its context in the battle over abortion, the law looks perfectly sensible, a routine state regulation of medical practice. (Spoiler alert: it isn’t.)
Further muddying the waters, the case is procedurally messy. While accepting it, the justices deferred scheduling it for argument until they receive clarification from the state court about what medications the somewhat ambiguously worded statute applies to. A request to another court for clarification, known as a certified question, is not unheard-of at the Supreme Court, but it is unusual. It gives the court’s order granting review a tentative look, as if the justices are less than fully committed to deciding the case. It’s possible that after receiving the state court’s answer (there is no deadline, but the state court has invited briefs from interested groups and is likely to hear argument in October), the justices will decide not to proceed.
Possible but not, I think, likely. This case simply presents too tempting a target, for the very reasons that lie behind the emergence of this seemingly technical dispute about medical practice. At issue is the Supreme Court’s own unstable abortion doctrine, specifically on where five justices might be willing to draw a line between acceptable and impermissible obstacles to access to abortion.
While not everything about the case is clear yet, one aspect is perfectly obvious: the court’s grant of review was no casual matter. Some justice or group of justices (it takes four votes to accept a case) spotted this case as a potential vehicle for saying something bigger about abortion and its regulation. By the same token, it’s no accident that medical abortion (or medication abortion, as it is also known) is the latest flash point in the abortion debate. That may be counterintuitive, given the prolonged hand-wringing over “partial-birth” and other “late-term” abortions; medical abortion is most effective in the first six or seven weeks of pregnancy (by which time the embryo is about the size of a pencil eraser) and doesn’t work after nine weeks (still in the first trimester, which is when about 90 percent of all abortions take place).
But if you think about it, it’s evident why opponents of abortion have begun to focus on the early nonsurgical procedure. Medical abortion is the ultimate in women’s reproductive empowerment and personal privacy. All it takes are two pills: mifepristone, sold as Mifeprex, which blocks the hormone progesterone, without which a pregnancy can’t continue, and misoprostol, taken two days later, which causes the uterus to contract and expel the early pregnancy. In many states, women can take the second pill at home.
As abortion clinics are forced to close because of onerous state regulations (54 clinics in 27 states have closed in the last three years, and many women live hundreds of miles from the nearest provider) and as women entering clinics often have to run a gauntlet of protesters seeking to “counsel” them (in its new term, the Supreme Court will hear a First Amendment challenge to a Massachusetts “bubble zone” law that keeps speakers 35 feet away from the entrance to a “reproductive health care facility”), medical abortion offers an end-run around the obstacles that for years have been a core part of opposition strategy.
That’s why, for example, 17 states have recently passed laws or issued regulations barring doctors from using video conferencing — “telemedicine” — to prescribe the abortion pills. Although video conferencing is increasingly popular in other medical settings, abortion is the only context in which states have sought to ban it. For a medical abortion, a nurse examines the woman by ultrasound as the doctor views the results over a video link. Having determined the stage of the pregnancy, the doctor then advises the woman on what to expect from the medication and dispenses the pills by sending a command that opens a drawer in the office. After taking the sequence of pills, the woman returns two weeks later for a follow-up visit.
Some 8,000 women in Iowa have used this procedure, which was pioneered in the state by Planned Parenthood and authorized in 2011 by the Iowa Board of Medicine. The board reversed itself last week. It acted on a petition from anti-abortion groups and with the support of Gov. Terry Branstad, an abortion opponent whose appointees to the board include a Catholic priest, Msgr. Frank Bognanno. Governor Branstad’s declaration that the video ban will “protect the health and well-being of Iowa women” had a familiar ring. Protecting women is always the stated rationale for new restrictions on abortion, even when the rationale is — as in Iowa, and as in the Oklahoma case before the Supreme Court — hogwash.
The law at issue in the Supreme Court case wasn’t drafted in Oklahoma. It was written in Chicago by an influential anti-abortion organization, Americans United for Life, and included as the “Abortion-Inducing Drugs Safety Act” among 30 model laws made available for sponsorship by state legislators. In the name of patient safety, the statute makes it a crime for doctors to deviate from the dosage and other instructions published by the Food and Drug Administration when it approved the medication in 2000.
The problem is that after 13 years, with millions of medical abortions having been provided in Europe and Asia as well as the United States, medical opinion about the appropriate dosage and other aspects of administering the drugs has evolved, as it often does after a new medication enters widespread use. Instead of 600 milligrams of Mifeprex, doctors now use only 200. While the original F.D.A. label specified that the drugs should be used only up to 49 days of pregnancy, doctors have found the regimen safe and effective for up to 63 days — nine weeks of pregnancy. Instead of requiring a second office visit for the second drug, as specified by the F.D.A., doctors now often give the patient the second drug to be taken at home, saving her an unnecessary trip. The 200-milligram regimen is so widely accepted that the 600-milligram dose is now considered bad medicine, and many doctors would refuse the procedure entirely rather than follow the old guideline.
Post-approval modifications in the way doctors use drugs are known as off-label uses. Off-label usage is extremely common, permitted by federal law. Prescribing anti-depressants to treat nerve pain and menopausal hot flashes is one current example. What’s unusual about the medical abortion situation is that doctors are simply prescribing less of an approved drug for its approved use, rather than turning a drug to a different use altogether.
In the Oklahoma case, a state trial judge, Donald L. Worthington, reviewed the evidence and found that the lower dose of Mifeprex was being used “in a great majority of cases of medication abortions in the United States” and had been “demonstrated by scientific research to be safer and more effective” than the original F.D.A.-approved dose. Requiring doctors to use the higher dose, the judge concluded in an opinion in May of last year, was “so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those women who do.” The Oklahoma Supreme Court affirmed the decision last December.
Unlike the trial judge’s eight-page opinion, however, the state high court’s unanimous three-paragraph opinion offered no analysis. It simply declared that “this matter is controlled by the United States Supreme Court decision in Planned Parenthood v. Casey,” a decision that “remains binding on this court until and unless the United States Supreme Court holds to the contrary.”
Planned Parenthood v. Casey was the 1992 decision that reaffirmed the basic right to abortion while also permitting states to adopt new restrictions. In its opinion, which Justice Kennedy joined, the court said it would permit restrictions that did not impose an “undue burden,” defined in the opinion as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” More than two decades later, all the important words in that definition of undue burden remain contested. What kind of obstacle is “substantial”? What is a prohibited “effect”? To the present point: does the court really care about “purpose” — the real purpose behind an abortion restriction — or is it satisfied by a state’s counter-factual claim that the purpose is to protect women?
In a brief he filed three weeks ago to the Oklahoma Supreme Court, E. Scott Pruitt, the state’s attorney general, said the legislature’s purpose “was to solve the problem of physicians using potentially dangerous unapproved protocols.” Really? Requiring doctors to prescribe three times more of a drug than they think is called for is a safety improvement? When Gov. Mary Fallin signed the bill in May 2011, she was more candid, calling it “a critical part of our effort to promote the cause of life.” Does candor matter to the Supreme Court?
It didn’t to Justice Kennedy when he wrote the partial-birth abortion majority opinion in 2007. He accepted as fact a claim for which there was no valid basis: that the prohibited procedure placed women at special jeopardy for acute post-abortion regret, “grief more anguished and sorrow more profound,” as he put it. As evidence, he cited a brief filed on behalf of “180 Women Injured by Abortion,” a document filled with personal “affidavits” by women who described vividly how sorry they were for having had terminated their pregnancies (notably, few actually discussed any particular method of abortion).
Lo and behold, the new case has brought with it to the Supreme Court a “Brief of Women and Families Hurt by RU-486,” filed in support of the state’s appeal by the same lawyer who organized and filed the earlier brief. It, too, contains personal testimonies, although not one actually says anything on the question before the court of more Mifeprex or less.
Not knowing Oklahoma judicial politics, I can only guess at the reason for the state court’s failure to analyze the case instead of invoking Planned Parenthood v. Casey is a purely conclusory fashion. At the least, the three-paragraph opinion was odd. Were the Oklahoma justices simply ducking for cover under the shadow of Casey? Or were they inviting, even prodding, the Supreme Court to reconsider Casey? Along with Justice Kennedy, Justice Sandra Day O’Connor was also a member of the five-justice majority in 1992. With Justice O’Connor replaced by Justice Samuel A. Alito Jr., there may no longer be a majority on the court to strike down any burden on access to abortion, even one that is obviously and purposefully “undue.” All that binds the current court to the Casey standard — whatever that standard can be said to mean today — is stare decisis, respect for precedent. As the Roberts court begins Year 9, that may not count for much.