In June, the United States Supreme Court granted certiorari in Cline v. Oklahoma Coalition for Reproductive Justice. The case comes to the high court from the Supreme Court of Oklahoma, which struck down an Oklahoma abortion law under the U.S. Supreme Court’s decision in Planned Parenthood v. Casey. The new case, which confronts the regulation of medically induced abortion, may prove to be important and surprising, for reasons that this column will explore.
Different Kinds of Abortion Regulation
The U.S. Supreme Court last entered the abortion fray on a question of substance in the 2007 case of Gonzales v. Carhart. It there upheld a federal law prohibiting a later-term abortion procedure known medically as “intact dilation and evacuation” (intact D&E) and by opponents as “Partial-Birth Abortion.” In an opinion authored by Justice Anthony Kennedy, the Court ruled that the “Partial-Birth Abortion Ban Act” (PBABA) is consistent with the constitutional right of a woman to terminate a pregnancy prior to viability. It reasoned in part that: (1) the Act leaves in place other methods of abortion—such as “dilation and evacuation” (D&E)—and therefore does not impose an undue burden on women seeking to terminate a pregnancy, and that: (2) given the brutal and inhumane nature of intact D&E and its resemblance to infanticide, Congress could legitimately single out the procedure for a prohibition, to avoid undermining the public’s perception of doctors’ proper role during delivery, and thus to avoid perverting the birth process.
The regulation at issue in Cline is different from the PBABA in a variety of ways. The Oklahoma law regulates the use of a drug that terminates pregnancies in their first few months, as opposed to prohibiting a method that is used in the second trimester, such as intact D&E. On the other hand, the Oklahoma law regulates but does not prohibit the use of abortion-inducing medications like RU-486. The regulation instead requires that if the drug is to be used, it must be used in strict compliance with the final printed labeling (“FPL”) that accompanied the FDA’s approval of the drug in 2000.
At first glance, this requirement of conformity with FDA labeling may sound reasonable. We might imagine that following the FDA labeling is necessary to ensure the safe administration of any drug, including this one. As it turns out, however, doctors, after accumulating experience with a drug over time, regularly prescribe it for off-label uses—including in Oklahoma—without triggering either medical or legal difficulties. In the case of RU-486, the “off-label” practice has involved, among other things, the use of a far lower dose of Mifeprex, 200 mg, which has proven over time (and around the world) to be effective and to be safer than the 600 mg dose that is listed on the original label.
Doctors now regard prescription of the 600 mg dose as a departure from sound medical practice, in light of the safe and effective alternative of prescribing just a third of that dose. Many doctors would, in fact, sooner refuse to administer RU-486 at all than follow the FDA’s original, excessive dosage recommendation. Experience with the drug has led to other modifications in standard medical practice as well, which are also illegal under the Oklahoma law.
In Casey, the U.S. Supreme Court announced that any law that has either the purpose or the effect of placing substantial obstacles in the path of women seeking abortion prior to viability qualifies as an unconstitutional “undue burden.” The Oklahoma law at issue in this case may run up against one or both of these prohibitions. Let us begin with a look at the effects prong of the Casey standard.
By requiring doctors to prescribe an excessive amount of RU-486 and thereby deterring them from prescribing the drug at all, the law could have the practical effect of placing substantial obstacles in the path of women who are attempting to terminate pregnancies that are necessarily pre-viable, because they can occur only in the first trimester. Recall, however, that in Gonzales v. Carhart, the Court considered the availability of alternative abortion methods in determining that the PBABA does not impose an unconstitutional “undue burden” on women. It might therefore appear to follow that the impact of a law heavily restricting—but not actually prohibiting—one method of early abortion (the use of RU-486) could similarly be constitutionally redeemed by the availability of other methods of abortion, such as the aspiration procedure.
Still, in the case of medical abortion, the relative intrusiveness of alternatives like the aspiration procedure might distinguish the Oklahoma law from the PBABA. Arguably, a D&E is not distinct enough from an intact D&E, to qualify as significantly more intrusive, as a constitutional matter, for a woman who would have preferred the latter to the former. An aspiration procedure, by contrast, requires the use of a speculum and requires vaginal as well as cervical intrusion, and these requirements may place the procedure in an entirely different category from the medication alternative.
The “purpose” prong of the Casey “undue burden” test may, at least in theory, be more promising than the “effects” prong that I described above. Though the Supreme Court has yet to apply it to strike down any abortion regulation at all, the purpose prong, announced in Casey, regards an abortion regulation as constitutionally invalid if its purpose is to place substantial obstacles in the path of women seeking to terminate their pregnancies.
On one hand, it is possible to argue that virtually all existing abortion regulations are intended to impede women’s access to abortion. Indeed, they are often authored by members of organizations whose express mission is to bring about the end of legalized abortion in this country. On the other hand, it is at least possible to identify plausible purposes for some of the laws currently on the books other than placing a substantial obstacle in the path of women seeking abortions, whether or not these alternative purposes truly animated the laws in question.
In the language of Casey, “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.” Applying this test, a waiting period could conceivably be premised on the desire to ensure that women undergoing a morally fraught procedure have the opportunity to first consider information about alternatives before giving their informed consent. Similarly, a prohibition against a visually-disturbing procedure, such as intact D&E, could have been enacted with the goal of shielding nurses and other medical professionals from witnessing firsthand the dismemberment and killing of late-term fetuses, given its similarity to infanticide and people’s tendency to become desensitized to what they witness directly and repeatedly. Again, I am not naïve enough to assume that these purposes truly motivated the laws in those cases, but one could imagine members of the public supporting the laws while simultaneously remaining committed to the general proposition that women should have access to safe and legal abortion.
The Oklahoma law is different, however. This law, signed in 2011, requires doctors to administer a medical dosage of Mifeprex that seemed reasonable in 2000, but that has since proved, through the experience of medical professionals, to be excessive. To insist at this point that doctors return to the earlier, excessive dosage as a condition of administering the medicine at all would appear to be challenging to explain as anything other than a deliberate attempt to create serious obstacles for women seeking abortions.
Off-label uses of drugs are extremely common throughout the country, and they are entirely legal. We generally trust doctors to use available medications in a manner consistent with their patients’ best interests, once the FDA has ruled the medications safe.
In Oklahoma too, doctors prescribe medicines in ways that differ from the FDA’s original labeling. And the state generally permits these off-label uses, because Oklahoma, like the rest of the country, trusts doctors to act in accordance with their patients’ best interests with respect to available and approved medications. But Oklahoma treats one kind of medicine differently, along this dimension: medicines that bring about an abortion.
For medical abortions under the challenged law, doctors must prescribe too much of the drug or not prescribe it at all, notwithstanding their own accumulated experience and knowledge that leads them to reject the higher dose in favor of a much lower effective dose. Singling out an abortion drug in this way is arbitrary from a patient-safety perspective and betrays an unwillingness to allow doctors who prescribe abortion medication to do what Oklahoma implicitly recognizes is in their patients’ best interests. The only way to explain this is exactly as the trial court in Cline explained it, in granting the Oklahoma Coalition for Reproductive Justice’s motion for summary judgment: It is “so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those women who do.”
Late Versus Early Abortion
Beyond the unlawful purpose behind the Oklahoma law, there is another distinction between it and the PBABA that could prove decisive. The distinction harks back to Roe v. Wade, and it may provide hope to those who, in the wake of Gonzales v. Carhart, worry that Justice Kennedy has turned against a woman’s right to terminate a pregnancy. This notable difference lies in the timing of the two regulated procedures: the first part of the first trimester for one, and the latter part of the second trimester, for the other.
Why should timing matter? Under Casey, timing appears to carry little weight prior to the point of fetal viability. Before viability, undue burdens are impermissible; after viability, outright prohibitions are constitutionally acceptable, provided that they include exceptions for pregnancies that threaten a woman’s life or health. Under Roe, however, timing did matter. During the course of a pregnancy, the state’s interest grew, so that a regulation that would have been impermissible in the first trimester might be acceptable in the second. After viability, under both Roe and Casey, prohibitions are permissible, provided life and health exceptions.
The notion that late abortions raise moral questions that early abortions do not is an appealing one for many Americans who consider themselves pro-choice. One might, for example, take the position that the law should not prohibit abortion, but simultaneously feel quite uncomfortable about the ethics of late-term abortions, notwithstanding one’s view of the proper scope of the law. At least one abortion provider, Sara Wicklund, explained in her book, This Common Secret, that because of what she learned about embryology, she chose to limit her abortion practice to only first-trimester abortions, given her own moral qualms about later ones.
I have discussed this distinction between early and late abortions in my own writing, including here, where I identified medical abortions, in particular, as a threat to the pro-life movement, in part because they permit terminations at a point at which people consider them to be least morally problematic, in virtue of their not involving the death of a sentient being.
In Gonzales v. Carhart, the Court did not expressly say that later pre-viability abortions are morally distinguishable from earlier ones. Nonetheless, the Court’s revulsion at the dismemberment of a late-term fetus, whose hands are described in a quotation as clenching and unclenching during the procedure, is quite evident. Justice Kennedy’s worry, expressed in his majority opinion, that women might feel traumatized by having participated in an abortion of this sort, may reflect his own moral sense that playing a part in an abortion of that kind would be horrifying. Whether women, in fact, feel the way that Justice Kennedy does, given the reasons they might opt for an intact D&E, is a separate question, but Justice Kennedy himself plainly wanted no part of this procedure and may, indeed, have regarded a vote to strike down the PBABA as an act of complicity in something akin to infanticide.
The regulation in Cline is quite different. It governs only those abortions that occur during the first part of the first trimester of pregnancy, the period in the development of an embryo or fetus when people in the mainstream of this country are least inclined to perceive an abortion as an act of violence. Justice Kennedy, though he is Catholic, is increasingly someone whose ethical sentiments mirror those of the mainstream.
The law in Oklahoma, clearly directed at creating an obstacle for women seeking an abortion, manifests the pro-life view that there is no difference between the life of a zygote or embryo, incapable of consciousness or sensation, and the life of a six-month fetus, or a newborn baby, for that matter. If one accepts this equation, then one might think of the Oklahoma law as the equivalent of the PBABA and treat Gonzales v. Carhart as therefore directing the Court to uphold the RU-486 restriction. But if one is, instead, responsive to the very real differences between abortions that precede, and those that follow, sentience, as Justice Kennedy in Gonzales v. Carhart appeared to be, then one would take this opportunity to strike down the law in Cline. This is a law, after all, that does nothing but impede women’s access to abortion at a time in pregnancy when an abortion could avoid a far more controversial late-term choice. For a person who views all abortions as equivalent, of course, delay has no moral downside, but I do not believe that Justice Kennedy is such a person, so I am cautiously optimistic about his vote in Cline.