PHOENIX — A new U.S. Supreme Court ruling Monday could eventually affect a year-old Arizona law restricting the use of an abortion-inducing drug.
In a brief order, the justices rejected a bid by abortion foes to have them reinstate an Oklahoma law which allows RU-486 to be used only in a manner approved by the federal Food and Drug Administration. The court said its earlier agreement to review an Oklahoma Supreme Court ruling overturning that law had been “improvidently granted.”
The bottom line is that the Oklahoma law remains unenforceable, and the ruling by that state's high court calling the statute “facially unconstitutional” remains.
Monday's ruling comes a year after Arizona legislators approved a nearly identical provision as part of a much broader set of restrictions on abortion.
Kate Bernyk of the Center for Reproductive Rights, whose organization represents those who challenged the Oklahoma law, said attorneys are aware of the Arizona statute. But she said no decision has been made whether to challenge the law here.
Part of that, she said, is because Arizona lawmakers, while approving the restriction in 2012, gave state health officials until this coming August to come up with rules on how to implement the law. Bernyk said Center for Reproductive Rights wants to examine those rules and determine if they will impose an unconstitutional restriction on the right of women to terminate their pregnancies.
The Arizona law was pushed by the Center for Arizona Policy.
Josh Kredit, legal counsel for the Center for Arizona Policy, said the FDA approved RU-486 to terminate pregnancies under special restrictions.
Specifically, it requires two doses of the drug, known as mifepristone, to be administered. More to the point, Kredit said the FDA said it was not to be used beyond the seventh week of pregnancy.
But he said that doctors, both in Oklahoma and Arizona, had developed non-approved protocols for using the drug up to nine weeks.
“As it went along, the risk went up and the ability to effectively terminate the pregnancy went down,” Kredit said. So the law was changed, here and elsewhere, to prohibit doctors from making their own decisions about using the drug outside of those original FDA restrictions.
The Oklahoma case is a bit unusual because the Supreme Court originally had agreed to hear from those who argued that state legislators did nothing wrong with enacting the restriction.
It was only later that the justices asked the Oklahoma high court to clarify whether it saw the law as restricting abortions — which is permissible in some cases — or effectively banning them. When the Oklahoma court said the read the law as an unconstitutional a ban, the Supreme Court opted not to get involved.
The Supreme Court eventually may not be able to dodge the issue — Kredit said federal appeals courts elsewhere have upheld similar state laws.
Monday's decision by the Supreme Court to step aside in the Oklahoma case comes even as another provision of Arizona's own 2012 law could get the high court's attention: making it a crime to terminate a pregnancy at or after the 20th week of pregnancy.
In that case, a trial judge declared the law to be simply a permissible restriction. But the 9th U.S. Circuit Court of Appeals said it amounted to an impermissible ban on abortions prior to viability, something generally considered to occur around the 23rd or 24th week.