Oklahoma's New Abortion Laws Challenge the Right to Choose

JURIST Guest Columnist Adam R. Banner discusses the US Supreme Court's request for clarification on the controversial Oklahoma House Bill 1970...

Oklahoma has long had a reputation as one of the most conservative states in our nation. However, the Oklahoma Supreme Court is proving itself a bit more liberal as of late in regards to protecting a woman's right to choose. Oklahoma has possibly teed up a national discussion regarding the restrictions on "undue burdens" the US Supreme Court mandated in Planned Parenthood v. Casey, and the Court wants Oklahoma to provide a more thorough explanation of the state's most recent decisions regarding abortion laws. The case in question is Cline v. Oklahoma Coalition for Reproductive Justice.

Although Casey ultimately upheld a woman's right to choose an abortion, the decision allowed for each individual state to regulate the practice, so long as those regulations do not raise an "undue burden" on the woman or her physician. Consequently, legislators have been testing the waters ever since, and it just so happens that Oklahoma's most recent attempt has perked the Court's collective ears.

What initially began as Oklahoma House Bill 1970 set the stage for the Oklahoma Supreme Court to strike down a law which attempted to regulate the use of RU-486, an "abortion-inducing" pill, which Oklahoma law makers claimed was being dispensed by abortion providers in an unsafe manner. According to the Oklahoma Legislature, House Bill 1970, also known as the "Abortion-Inducing Drug Safety Act," is meant to outlaw the distribution of the pill with disregard for the Food and Drug Administration (FDA) guidelines, which bar vaginal-intake and limit the use of the drug to within forty-nine days of the patient's last menstrual period.

Many practitioners in Oklahoma have instead been following the guidelines outlined by the National Abortion Federation (NAF), which allow for vaginal-intake and also authorize the pill to be taken within sixty-three days of the patient's last menstrual cycle. Moreover, the law in question was also intended to fight the "off label" use of Misoprostol, a drug commonly prescribed by physicians in conjunction with RU-486 to effectuate the abortion at varying intervals and dosages. However, Misoprostol has only been approved by the FDA for that specific purpose under strict guidelines and schedules.

We have seen other states attempt to regulate the practice of abortion recently, with some attacking the same issues as the Oklahoma Legislature. North Dakota has recently received similar scrutiny from its high court for attempting to pass a law that would effectively prohibit non-surgical abortions by outright outlawing one of the two drugs used in the process.

The "abortion pill" has been touted as a safer alternative to surgical abortion, but under a strict reading of Casey, Oklahoma's law does not necessarily present an "undue burden" on a woman's right to procure an abortion. In its explanation to the US Supreme Court, the Oklahoma high court will have to focus on two aspects of the Casey holding when reexamining the law in question: 1) the issue of the fetus's viability and 2) the health and welfare of the mother.

Casey only grants the right to choose to abort the fetus before it has become viable, which has been interpreted as the end of the second trimester. Under the guidelines issued by both the FDA and the NAF, RU-486 can only be administered within the first trimester. Though an argument could be made that the Oklahoma law in question is creating an undue burden regarding the time-frame in which a women may procure a non-surgical abortion, the difference in the FDA and NAF guidelines is only approximately two weeks.

Other states have gone to much greater lengths to regulate the temporal threshold as to when an abortion crosses the line from legal to illegal. A judge in Arkansas recently blocked a law that would bar abortions after twelve weeks from fertilization. Another law from North Dakota was passed to restrict abortions as soon as a fetal heartbeat can be detected, which is at times as early as six weeks after fertilization. Rick Perry, the Governor of Texas, recently signed into law much publicized restrictions on abortion, which in part ban abortions after twenty weeks of pregnancy. The Oklahoma law in question contains no such temporal mandate.

Regardless, one of the Casey decision's primary holdings involved a state's ability to protect the health of the woman seeking the abortion. In that sense, the Oklahoma Legislature may have finally picked a fight on the abortion-front it is able to win. On its face, the Oklahoma law seeks to restrict the abortion pill's use to the schedule established by FDA guidelines, which would seem to be a fair argument from a health-minded perspective. Add that to the fact the misuse of the drug has been linked to at least a few documented deaths, and the Oklahoma law's mandate of a health exam prior to prescribing the pill does not seem to be too much of a burden in light of the state's legitimate interest in protecting the health of the mother. Moreover, Oklahoma has boot-strapped the medical exam as necessary to establish the viability of the fetus before prescribing the drug.

The "health-of-the-mother" angle has been a point of contention with many other states' new abortion restrictions as well. Texas, North Dakota, and Wisconsin have passed recent "health-protection" related restrictions which focus on requiring the individuals performing the abortions to be board-certified or eligible and have admitting privileges at a local area hospital. Other states, such as Virginia, have focused their efforts on creating strict, hospital-like regulations and requirements for the abortion clinics to comply with. The Oklahoma law does not mandate any such undue burden on the abortions providers or the facilities.

As an Oklahoma criminal defense attorney, I have kept my eyes focused specifically on the recent Oklahoma abortion regulations. Oklahoma still has some of the harshest criminal penalties on the books for abortion-related crime, and each new law the state attempts to pass presents another hazard for potential clients. Regardless, and despite the fact that I am pro-choice, I believe the Oklahoma judiciary may have been out of line in condemning the law in question, simply from a "health-protection" perspective.

Oklahoma is not attempting to further restrict the class of individuals who may perform abortions, nor is it attempting to impose unnecessary hardships and regulations regarding the health-standards of the clinics themselves. It is not trying to completely outlaw the use of non-surgical abortions. It is merely trying to provide more oversight and uniformity regarding the process to better protect the health of its citizens in compliance with FDA regulations. However, if new facts show that the FDA regulations and prescribed schedules are incorrect or unnecessarily burdensome, then that is another story completely.

If recent history serves true though, the Oklahoma judiciary may attempt to prove its indirectly liberal approach to the right to choose by utilizing a conservative application of the Casey decision. The majority of laws regulating the practice of abortion which Oklahoma has attempted to pass over the past few years have quickly been struck down by the Oklahoma Supreme Court, but many of those laws were much more invasive and presented the unnecessary "undue burden" that federal case law prohibits. One prime example is the former law which required potential abortion patients to view an ultrasound image while listening to a description of the unborn fetus. Such a regulation is clearly the type of unconstitutional hurdle that Casey warned against; the requirement had no real basis in protecting the health of the patient or the viability of the fetus. As such, the law was struck down during the same term as the one in question, and rightfully so.

The US Supreme Court has directed Oklahoma to explain its decision in Client v. Oklahoma Coalition for Reproductive Justice in more detail. Specifically, the Court has requested Oklahoma focus its answer on whether or not the law bars the use of Misoprostol even when used in accordance with FDA guidelines and schedules. Depending on the answer, we could see new life breathed into an old fight.

Adam R. Banner, founder of the Oklahoma Legal Group, is a criminal defense attorney in Oklahoma City, Oklahoma. His practice focuses on all issues relating to the defense of those accused of criminal activity. From trial litigation to appellate representation, he specializes in the protection of his clients' constitutional rights.

Suggested citation:Adam R. BannerOklahoma's New Abortion Laws Challenge the Right to Choose, JURIST - Sidebar, July 30, 2013, http://jurist.org/sidebar/2013/07/adam-banner-bill-1970.php.

This article was prepared for publication by Stephanie Kogut, Section Head of JURIST's Professional Commentary Service. Please direct any questions or comments to her at professionalcommentary@jurist.org

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