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Bottles of the abortion-inducing drug RU-486.
Michael Macor/San Francisco Chronicle/AP
Bottles of the abortion-inducing drug RU-486.

Chemical attack

Supreme Court | Supreme Court preview: The first big abortion case in six years involves the risky RU-486 drug

Issue: "Bright or rotten idea?," Oct. 5, 2013

Leslie Wolbert has first-hand experience with the abortion drug RU-486. She took the drug in 2006 and experienced “the worst pain I’ve ever felt in my life.” She was vomiting and “bleeding like I never knew possible.” Three days after taking the second pill in the drug regimen, in the midst of her pain, she decided to take a hot shower: she began losing blood again and noticed the drain was clogged. Then she realized: “It was my baby that was clogging the drain of the shower. … I flushed it down the toilet. … It was even more horrifying than it sounds.”

Wolbert recounts her story in an affidavit to the Supreme Court concerning Cline v. Oklahoma Coalition for Reproductive Justice, a major case that has so far garnered little attention. The case involves an Oklahoma law that regulates medical abortions through the RU-486 drug regimen, and it’s the first major abortion case to reach the Supreme Court since the 2007 decision in Gonzalez v. Carhart upheld a federal ban on partial-birth abortion. It’s also only the second case, after Gonzalez, since Catholic Justice Samuel Alito replaced Justice Sandra Day O’Connor, who sided with a number of opinions upholding and reinforcing Roe v. Wade. 

In December 2012, the Oklahoma Supreme Court struck down the RU-486 law, and the state appealed, saying the ruling conflicted with Supreme Court precedent allowing state regulation of abortion. The Supreme Court took up the case, while also asking the Oklahoma court to elaborate on its decision, which was only three paragraphs long. Once the high court receives answers from the state court, it will either move forward with scheduling arguments or it could respond to the state court without hearing arguments. This is the first time the court has taken a case on chemical abortions.

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The major Supreme Court decisions on abortion post-Roe have allowed states to craft their own restrictions on abortion with an exception for the life or health of the mother. Those regulations must not pose an “undue burden” on a woman’s ability to obtain an abortion before a baby is viable. In the last few years, state legislatures have passed stronger restrictions on surgical abortion, and abortion providers see chemical abortions as an alternative.

“Clearly the case involves chemical abortion ... but what is at stake here is also the state’s ability to regulate an abortion procedure,” said Mailee Smith, counsel for Americans United for Life who is also counsel for Oklahoma’s legislators before the Supreme Court. AUL provided the model legislation that became Oklahoma’s medical abortion law. “What we’ll see is: Did Justice [Anthony] Kennedy mean it?” she said. Kennedy, who supports Roe, also wrote the decision upholding the ban on partial-birth abortion.

RU-486 is a two-part abortion drug, and the only FDA-approved medical abortion technique. Pregnant women first swallow a Mifeprex pill to abort the baby, and then the next day take another pill, misoprostol, to simulate labor and expel the baby. The FDA approved Mifeprex as an abortifacient in 2000 with a number of warnings and restrictions for its use. But the FDA doesn’t enforce drug restrictions, so doctors who go “off-label” aren’t breaking laws. With this law, the state of Oklahoma becomes the FDA’s enforcer, prohibiting doctors from “off-label” uses of RU-486. It’s illegal now, for example, to prescribe the drug past seven weeks of pregnancy, and the mother must return to the pill provider’s office for follow-ups after the abortion.

Linda Greenhouse, Supreme Court commentator for The New York Times, called medical abortion “the ultimate in women’s reproductive empowerment,” because women can administer the two-part drug on their own. Some parents of women who have died from RU-486 might disagree, because in the isolation of taking the drug women don’t know how to address complications that arise. The FDA has documented eight women who died from bacterial infections after taking the drug without following its regimen.

A brief submitted to the Supreme Court records stories from women who have taken RU-486, such as Wolbert, as well as their parents who have seen the effects. Monty Patterson’s daughter Holly died at age 18 after taking the RU-486 regimen in 2003. Patterson has since found other parents whose daughters also died after taking the drug, and started a website to highlight its dangers. “I do not want to see any other family go through what we have,” Patterson said in an affidavit submitted to the Supreme Court. Patterson has not taken a side in the abortion debate: he says he has no position on whether abortion should be legal, but he thinks RU-486 is dangerous and should be taken off the market. 

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