In an order filed Thursday, the U.S. Supreme Court signaled it might, in coming months, take up a case that would test pro-life restrictions on nonsurgical abortions. The case deals with an Oklahoma law banning the off-label use of abortion drugs. Several other states have enacted similar bans in recent years.
Abortionists use the two-drug regimen known as RU-486 to terminate pregnancies within the first trimester. The first drug, mifepristone, kills the baby. The second, misoprostol, taken a day or two later, expels it.
Oklahoma’s law, passed in 2011 but not enforced pending litigation, is intended to stop doctors from prescribing the drugs “off label”—in ways the Food and Drug Administration has not approved. Abortionists at Planned Parenthood and elsewhere frequently prescribe mifepristone (brand name Mifeprex) up to 63 days after the woman’s last menstrual period, but the FDA has only approved it for up to 49 days. Mifepristone is supposed to be administered orally, and the second drug is supposed to be taken at a doctor’s office, but abortion providers often ignore those rules.
Although it’s legal for doctors to prescribe drugs off label, prescribing abortion drugs in this manner can be dangerous for women. The deaths of at least eight women who used RU-486 between 2000 and 2011 occurred after they took the drugs off label.
The abortion proponents who challenged Oklahoma’s law argued it effectively shuts down all nonsurgical abortions in the state. Oklahoma courts agreed and overturned the ban. Last December, the Oklahoma Supreme Court ruled the law conflicted with federal court rulings giving women a constitutional right to abortion.
On Thursday, the U.S. Supreme Court said it may weigh in on the case—but first, it wants the Oklahoma Supreme Court to rule on two disputed points: Does the state’s law ban all use of misoprostol to cause abortions? And does it ban the use of methotrexate (a cancer drug) to end ectopic pregnancies?
Once Oklahoma clarifies those issues, the justices may take up the case, titled Cline v. Oklahoma Coalition for Reproductive Justice.
The case does not involve a separate Oklahoma law that bans “telemed” abortions, where RU-486 is prescribed by webcam. That remains illegal in the state.