Legal Analysis and Commentary from Justia

The U.S Court of Appeals for the Sixth Circuit Upholds Restrictions on Medical Abortion: Why Should Anyone Care?

In October of this past year, in Planned Parenthood v. DeWine, the U.S. Court of Appeals for the Sixth Circuit upheld a set of state restrictions on medical abortions against various constitutional challenges by Planned Parenthood of Southwest Ohio Region and others.  This was apparently the first time that a federal court of appeals had reviewed restrictions on medical, as opposed to surgical, abortions.  In this column, I will consider the significance of medical abortions—and thus of legal restrictions on them—in the ongoing battle between pro-choice and pro-life advocates.

Medical Abortion and Ohio Law

In 2000, the Food and Drug Administration (FDA) approved the use of mifepristone (also known as RU-486), as a safe and effective medical method for terminating a pregnancy.  At the time, the FDA identified specific protocols and gestational time limits for the use of RU-486 as an abortifacient.  Specifically, the FDA labeling indicated that a doctor should administer 600 mg of mifepristone to a patient within seven weeks of her last menstrual period (LMP) and then administer misoprostol two days later at the clinic.

After the FDA approved the use of RU-486, additional clinical trials led to the development of new protocols.  Under the new protocols, among other things, a much lower dose of mifepristone, 200 mg rather than 600 mg, could be used, and the follow-up misoprostol would be self-administered by the patient at home, rather than by the provider at the clinic.  Clinical studies also indicated that medical abortions were safe and effective up to nine weeks after a woman’s LMP, rather than up to only seven weeks.  A variant on this new protocol, known as the “Schaff Protocol,” subsequently became the primary approach to medical abortion at Planned Parenthood’s Ohio clinics.

Ordinarily, according to the Sixth Circuit opinion, “[i]t is standard medical practice in the United States for physicians to prescribe FDA-approved drugs in dosages and for medical indications that were not specifically approved—or even contemplated—by the FDA, particularly where the alternative use is supported by adequate study.”

In 2004, however, Ohio passed a law that criminalized the administration of RU-486 outside of the specific protocol described by the FDA.  As the Ohio Supreme Court later clarified, this meant that Planned Parenthood providers would be guilty of a felony if they administered the lower dose of mifepristone, permitted patients to self-administer the misoprostol, or gave any woman a medical abortion in the eighth or ninth week after her LMP.  Planned Parenthood challenged the law as violating various constitutional provisions, including a woman’s right to choose abortion.  Due to litigation, the law did not go into effect until early 2011, though with modifications protecting the life and health of the mother.

Over a partial dissent by Judge Karen Nelson Moore, a former law clerk to Justice Harry Blackmun (like myself), the Sixth Circuit affirmed summary judgment for the defendants, rejecting the constitutional claims, including the allegation that banning a form of abortion (medical abortion) for pregnant women between 50 and 63 days following their LMP created an unconstitutional undue burden on their right to terminate a pregnancy.

Undue Burdens

On the facts as presented to the district court through affidavits and the like, it appeared that less than half (perhaps one-third) of the women with a choice of method preferred a medical over a surgical abortion.  Because most women apparently continued to choose surgery, the Sixth Circuit concluded that a method ban—that is, a ban on all RU-486 abortions for women in the eighth and ninth weeks after their LMP—did not pose a “substantial obstacle” to this group of women’s access to abortion.  It seemed, in fact, based on self-reporting, that many of the women who would have preferred a medical abortion nonetheless decided to go through with a surgical abortion when RU-486 became unavailable.   On this understanding of the meaning of the phrase “substantial obstacle,” an abortion restriction poses no substantial obstacle if most or all of the women at issue still get an abortion, notwithstanding the challenged restriction.

This is a plausible understanding of “substantial obstacle,” particularly given the Supreme Court precedents that have followed Planned Parenthood v. Casey.  Yet this understanding ignores, as most decisions have ignored, one component of the Casey definition of an unconstitutional “undue burden.”  The Court said in Casey that “[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.  A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” (emphases added)

In other words, if an abortion restriction evinces the purpose of posing a substantial obstacle to women seeking an abortion, then that alone is enough to render the restriction invalid, even if it does not succeed in having this effect (i.e., the effect of stopping women from going through with their abortions).  In the light of this much-neglected component of the Casey “undue burden” test, it might be useful to examine the significance of medical versus surgical abortion.

The Significance of Medical Abortion

The first thing we can rule out, regarding the abortion restrictions in question, is the intention to protect the safety of medical patients.  Every time a doctor or other health care provider prescribes medication for an off-label use, that professional is taking a potential risk with the health of his patient.  Yet state and federal law generally (and wisely) stay out of the business of micro-managing doctors’ prescription practices, on the assumption that providers are, on the whole, far more knowledgeable about their patients’ medical needs and vulnerabilities than are politicians.  Why, then, one might ask, did Ohio deviate from this hands-off practice in the case of medical abortion?

What might otherwise be inexplicable becomes so obvious as to be banal once we recognize that any time abortion is at issue, one finds strong political opposition that translates into efforts to impede access.  One could easily imagine making it difficult to obtain an abortion by (1) arbitrarily requiring providers to administer high doses of a drug that is effective when administered in far lower doses (thus raising the price of the medical service); (2) requiring patients to come into the clinic for follow-up medication, rather than take the medication at home (thereby also raising the price and inconvenience of the medication); (3) eliminating the RU-486 abortion method altogether for women between 50 and 63 days after their LMP, and (4) criminalizing departures from all of the above and classifying providers who depart, in their patients’ best interests, as felons.

At this point, readers might be thinking:  “So what?  There is nothing special here.  Pro-life politicians are always looking for ways to impede access to abortion.  Why is this set of restrictions different from others?”

One answer lies in a consideration of what makes medical abortion different from surgical abortion, and correspondingly more threatening to opponents of all abortions.

Medical abortions differ from surgical abortions in a variety of ways, three of which are most relevant to the objectives of the pro-life movement.

Medication Diminishes the Provider’s Role

The pro-life movement in the United States has tended to focus its condemnation and antipathy on providers, rather than on pregnant consumers of abortion services.  For the most part, legal prohibitions have likewise targeted providers, and have treated women who terminate their pregnancies either as victims of the abortion industry or as passive participants who don’t truly understand what they are doing.  Indeed, one organization called “Feminists For Life” explicitly identifies itself as feminist and pro-woman and aligns itself with women’s autonomy in many spheres, including the need to support mothers in educational and employment contexts so that women do not feel driven to make use of abortion clinics by a society that is, in its view, unwilling to support mothers.  The organization thus treats women as victims, rather than perpetrators, of abortion.

A surgical abortion plays a useful role in this narrative of pregnant women as passive recipients and victims of abortion.  The woman goes to a clinic and submits to a procedure carried out by people who make a living ending the lives of innocent embryos and fetuses.  Like the innocent life inside her, the pregnant woman who undergoes an abortion is—from the pro-life perspective—another casualty of the clinic, one who might go on to suffer from post-abortion psychological trauma, as hypothesized by Justice Kennedy in Gonzales v. Carhart.

In a medical abortion, by contrast, the woman who seeks to terminate her pregnancy can, in theory, take pills and bring about her own abortion.  Providers may give her the means of aborting, by providing the pills, but it is the woman, and not her doctor, who takes the crucial steps involved in ending the life of her embryo or fetus and thereby terminating her pregnancy.  Moving the process from one that involves surgery to one that requires medicine alone accordingly reduces the centrality of medical providers, and increases the agency and corresponding responsibility of the pregnant woman.

If there is a “perpetrator” of a medical abortion, it is thus no longer the provider, but rather the pregnant woman herself.  And this perpetrator role for the woman does not comfortably fit within the rhetoric or legal strategies of the U.S. pro-life movement:  vilifying and criminally punishing the woman who obtains an abortion would be far more challenging for the pro-life movement than demonizing the abortion providers, as it has commonly done.

This feature of medical abortion may help explain why, beyond the added expense involved, the law I have described above would preferentially reduce the availability of medical abortion by limiting it to the first seven weeks after a woman’s LMP, despite its safety and effectiveness up to nine weeks.  If surgical abortion better fits the model of the abortion against which pro-life activists rail, then it is desirable, from their perspective, to divert women who would otherwise choose medicine onto the surgical track.  Surgery places the provider at center stage, where he can most plausibly be demonized.  In the form of a pro-life slogan, the message is:  “Women don’t kill their unborn babies.  Abortionists do.”

Medication Reduces Public Access to Abortion Recipients

In addition to lowering the profile of the abortion provider, a medical abortion simultaneously reduces an abortion patient’s need to go to an abortion clinic to submit to a procedure.  With a medical abortion, she can—for the moment, in theory, but ultimately in practice—go to a pharmacy, purchase the medication, and go home to have her abortion in private.  This fact makes it much more difficult for abortion protestors to gather, hold up signs, and offer unwanted and potentially hostile advice to women as they enter and leave a clinic, thereby drawing attention to the issue of abortion and to the women who might have preferred to remain anonymous.

The availability of medical abortion can therefore substantially diminish the opportunities for intervention and obstruction by pro-life advocates.  It may well be that some women who would like to consider the possibility of having an abortion are deterred from doing so by the prospect of a humiliating, stressful, and contentious encounter with pro-life activists, a prospect that could eventually be reduced or eliminated by medical abortion.  Eventually, women might even be able to receive their mifepristone and misoprostol in the mail, so that the entire process could happen in the privacy of a woman’s own home.

This prospect can help account for the restriction on home administration of misoprostol, a restriction that forces the woman to appear several times at an abortion clinic for her medical abortion, just as she might have had to do for a surgical abortion procedure.

Medication May Feel Less Like a Morally Fraught Event

Yet another feature of pro-life advocacy is the effort to distinguish abortion from medical procedures that, according to the pro-life movement, raise no ethical issues.  This is why, for example, various laws have emerged that require providers to confront women seeking an abortion with information (including some inaccurate information) that emphasizes the idea that abortion is different from other medical procedures.  Though informed consent is always part of the surgical process, a pre-abortion informed consent session uniquely includes material highlighting, in various ways, the fact that someone else’s life is involved and that there are alternatives to the abortion procedure (such as adoption) that would preserve that life.  In this context, informed consent offers an opportunity for state-mandated moral instruction, rather than simply providing an occasion for letting patients know the medical pros and cons of a surgical intervention.

If a woman need not opt for a surgical abortion, and can instead simply buy two drugs and take them at home, then she can much more readily embrace the idea that she is doing something that resembles what other people do when they swallow other sorts of medication at home.  Though the package of medicines the woman receives may include “informed consent” materials, she can easily throw them out, and just take the medications as directed.  In doing so, moreover, she is likely to feel less stigmatized, vilified, and guilty, than she would if the experience required her to visit a clinic, find herself confronted by protestors holding bloody pictures on their signs, hear about her embryo’s or fetus’s gestational age, and otherwise be reminded of the moral dimension of terminating a pregnancy, a moral dimension that she might or might have already considered on her own prior to deciding to have an abortion.

Medical Abortion as a Threat to Pro-Life Messaging

In short, access to medical abortion poses significant threats to the pro-life movement in the United States.  It transfers apparent agency over abortion from the provider to the patient, and thereby diminishes the provider’s “perpetrator” status, a centerpiece of U.S. pro-life advocacy.  Moreover, access to medical abortion also has the potential to move the locus of abortion from the public sphere—a clinic, where protestors can confront patients—to the private home, where such confrontation is impractical, at best.  And such access reduces the degree to which abortion can be made to “feel” different to the patient from—and ethically more questionable than—other sorts of medical experiences.  As a result, it is understandable that the pro-life movement (and the legislators who cater to it) would utilize the law to reduce the availability, affordability, and ease of medical abortion.

Less understandable, however, is the failure of courts to apply the “purpose” language of Casey to protect the availability of medical abortion.  Medical abortion is not simply one “method” of terminating a pregnancy.  It uniquely offers a woman freedom, during the first nine weeks after her LMP, from much of the stress and anguish that often accompany a surgical abortion.  Pro-life advocates plainly understand this reality.  It would best serve women’s constitutional right to privacy if courts understood it as well.

Sherry F. ColbSherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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