The U.S. Supreme Court will not hear Oklahoma’s appeal seeking to reinstate a law restricting medical abortions, it announced Monday, reversing course.
Separately, the Texas abortion clinics threatened by the state’s new admitting privileges requirement have asked the Supreme Court to step in and block that law, which the Fifth Circuit Court of Appeals ruled Thursday could immediately go into effect. About a third of Texas’s abortion clinics have already had to stop providing abortions because they are unable to comply with the law. Their fates are now in the hands of Justice Antonin Scalia, who oversees that circuit and who promptly asked the state of Texas to respond by November 12.
In the Oklahoma case, the U.S. Supreme Court had asked the State Supreme Court to explain why it had previously struck down the law, which would restrict the off-label use of the abortion pill, and whether it amounted to an unconstitutional ban. Abortion rights advocates, who would prefer to let the ruling stand than be brought up with an uncertain Supreme Court, cheered the dismissal of the case.
“This should send a strong message to politicians in Oklahoma and across the U.S. that women’s constitutional rights are not up for debate and cannot be legislated away,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which brought the initial challenge to the Oklahoma law.
The Oklahoma law banned the use of safer, off-label protocols for medication abortion and narrows the time window it is available. The law is admittedly confusing: Off-label use of drugs is highly common, and forcing doctors to adhere to an older protocol — which requires an additional office visit and has more side effects — has nothing to do with medicine and everything to do with politics. But the question was whether this amounted to a ban, or just a regulation. Under Supreme Court precedent, an outright ban of abortion before viability is outright unconstitutional, but regulations are allowed unless they constitute an “undue burden.” The Oklahoma Supreme Court responded, “H.B. 1970 effectively bans all medication abortions.” That was enough for the U.S. Supreme Court to drop it.
Meanwhile, in Texas, a similar medication abortion ban was ruled constitutional by both the federal district court (which added a health exception) and the appeals court (which removed it). While that provision is not part of the emergency request before the Supreme Court, it may eventually have to settle the question of whether states can pass such laws requiring the FDA protocol.
The more immediately pressing provision is the one that is already preventing women from accessing their constitutional right to end their pregnancy.
The Center for Reproductive Rights, the ACLU, and Planned Parenthood are representing reproductive healthcare providers who are asking the court to block enforcement of the law in Texas. “The District Court enjoined the operation of the law prior to its effective date because it found that it does not improve patient outcomes and imposes a substantial obstacle in the path of women seeking abortion,” they wrote in their appeal, adding that evidence indicated “the law would have an unprecedented and devastating effect on women’s abilities to obtain an abortion.” The Fifth Circuit has said it will hear oral argument in the case in January 2014.
“Over the last couple of days, women who made the complex and deeply personal decision to have an abortion showed up at their doctor’s appointment and could not get a safe and legal medical procedure that has been their constitutionally protected right for 40 years,” said Cecile Richards, president of Planned Parenthood Federation of America. “We’re asking the Supreme Court to stop Texas’ dangerous and extreme law because your rights—your very ability to make your own medical decisions—should not depend on your zip code.”
One such woman joined a teleconference held by the organizations Monday. Marni Evans, who is seven weeks pregnant, had already gone through the mandatory transvaginal ultrasound and the waiting period required under Texas law. But her appointment has been canceled because her provider does not have admitting privileges at a hospital 30 miles away. “I am still pregnant today because that decision was taken away from me,” Evans said. “That is not supposed to happen in this country.”
Irin Carmon