What Justifies Mandating Bad Medicine?
Priscilla (Cilla) Smith is a
Senior Fellow and Reproductive Justice Program Director at the Information Society Project at the Yale Law School. Prior
to joining the ISP, Smith was an attorney with the Center for Reproductive
Rights for 13 years, serving as the U.S. Legal Program Director from 2003-2007,
and litigated cases nationwide, including Gonzales
v. Carhart.
The Supreme Court’s recent decision
to grant certiorari and certify questions to the Oklahoma Supreme Court in Cline v. Oklahoma Coalition for Reproductive Justice,
has sounded alarm bells among advocates for
reproductive rights. Concern is especially understandable this year
because the past three years have seen a record number of new abortion restrictions.
There is a growing sense that the
constitutional right to choose is once again under siege. The murder of a prominent abortion provider,
Dr. George Tiller, in 2009, and a recent report from a Huffington Post survey indicating that more
than fifty abortion clinics have closed or stopped performing abortions since
2010 contribute to this growing disquiet.
While the Supreme Court is of
course permitted to revisit its precedents where they have proven unworkable,
their jurisprudential foundations have been eroded, and society’s reliance on
the precedent is not so great that overturning the prior rule would cause
special hardship, if the Court were simply to follow established law, the
outcome in Cline would seem to be foreordained. The Court’s most recent
ruling on abortion, 2007’s Gonzales v. Carhart, and its decision
earlier this summer in United States v. Windsor (striking down
the Defense of Marriage Act), both strongly indicate that the statute at issue
in Cline – even if it were to receive a narrowing construction –
is inconsistent with the rights to liberty and equal protection promised by the
Fourteenth Amendment.
Cline involves a challenge to an Oklahoma statute that regulates the
use of medication to perform abortions in the first nine weeks of pregnancy.
Abortion using medications is a safe and effective alternative to surgical
abortion that has been chosen by one out of four U.S. women who have been
presented with both alternatives.
One of the drugs at issue is
mifepristone, previously known as RU-486. Anti-abortion advocates have a long
history of working to prevent American women from using mifepristone to obtain
early medical abortions. The medication has been in general use in Europe
since the 1980s. By the early 1990s it was already recognized to have had
“extraordinary success in achieving complete abortion . .
. [while posing] acceptable health risks” in early pregnancies.
Despite its proven health benefits, the Reagan administration issued a specific
ban on importation of mifepristone to prevent the drug’s use here in the U.S.,
and anti-abortion advocacy slowed down the process of obtaining FDA approval
for the marketing of the drug here in the U.S. Approval was finally
obtained in 2000.
The law struck down by the Oklahoma
Supreme Court in Cline regulates all “abortion-inducing drugs,”
specifically naming three: mifepristone (“mife/RU-486”); misoprostol, which is
used in combination with mife/RU-486; and methotrexate, a drug used alone in
place of mifepristone to treat ectopic pregnancies.
The Supreme Court certified the
question in Cline to the Supreme Court of Oklahoma because the meaning
of the law is contested. According to the plaintiffs, the statute imposes a
complete ban on early medical abortions, and a complete ban on the use of
methotrexate to save a woman’s fallopian tube in an ectopic pregnancy.
According to Oklahoma, the law “merely” limits women to using mifepristone
according to the regimen described on the original label approved for marketing
purposes.
I place “merely” in quotes because
the protocol is profoundly out of date, so outdated that nationwide, at least
ninety-six percent of all medication abortions now involve an evidence-based
regimen that departs from the mifepristone label. In other words, even if
Oklahoma’s interpretation of the statute were upheld, it would require
physicians to prescribe incorrect dosages of mifepristone and misoprostol,
dosages that have been proven in clinical trials to increase complication rates
and reduce effectiveness significantly.
There is strong reason to think
that the Oklahoma Supreme Court will not adopt the narrowing
construction proffered by the state of Oklahoma. Indeed, if the Oklahoma
Supreme Court responds that this law bans all medical abortions, then the Court
will likely either affirm the lower court or dismiss the case as improvidently
granted (as it should). What is distressing about Cline is that even the
narrowing construction Oklahoma seeks – which would allow some medical
abortions, but prevents physicians providing abortions from updating dosing
regimens to comport with evidence developed through clinical trials concerning
the safety and efficacy of said regimens – is deeply inconsistent with the
Court’s holdings in Carhart and Windsor. Should the Oklahoma
Supreme Court adopt the state’s proffered limited construction – only allowing
the use of outdated medical protocols – the question of what conceivable
purpose the restriction could serve would be before the Supreme Court.
In Casey, the Court held
that a statute’s purposes are central to analysis of its constitutionality in
the abortion context. The spousal notification provision at issue there was
struck down both because “in a large fraction of the cases in which [it was]
relevant, it will operate as a substantial obstacle to a woman’s choice to
undergo an abortion,” but also because it had an invalid purpose,
“embody[ing] a view of marriage consonant with the common-law status of married
women but repugnant to our present understanding of marriage and of the nature
of the rights secured by the Constitution.” Notably, in Carhart,
while upholding a ban on a narrow category of second trimester surgical
abortions, the Court was careful to examine the validity of state interests
under the “purpose prong” of the Casey undue burden standard, even where
the plaintiffs had not made a purpose prong claim. The Court’s recent decision
striking down the federal Defense of Marriage Act (DOMA) has further anchored
purpose analysis to judicial review of government infringements on the right to
liberty. After a careful examination of the claimed state interests supporting
DOMA, the Court found that “no legitimate purpose overcomes the purpose and
effect to disparage and to injure those whom the State, by its marriage laws,
sought to protect in personhood and dignity.”
The lower courts, for their part,
saw the law in Cline as plainly unconstitutional under Casey and
Carhart and correctly decided the case by evaluating the
law under the “purpose prong.” The lower court found that none of the
valid state interests served by the regulations upheld in Casey and Carhart
were served by the law in Cline. Instead, using language
foreshadowing that used by the Court in Windsor, the trial court held
that the Oklahoma law “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 who
do.”
Cline raises issues deeply consonant with those raised in Casey
and Windsor. For the Oklahoma law to stand, anti-abortion
advocates would be required to locate a permissible state purpose for the law.
They have two avenues at their disposal. First, they would argue that
banning updated dosing regimens for medical abortion serves the state’s
interest in women’s health (a contention that one commentator politely referred to as
“hogwash.”). The only other option they have is to argue that limiting
doctors to using outdated dosing requirements serves the state’s interest in
protecting the sanctity of an unborn life or supports a state interest in the
integrity of the medical profession, one of the successful arguments made in Carhart.
While these two arguments by
anti-abortion advocates loom over every case challenging the abortion right,
should the Court faithfully apply the purpose analysis as it has emerged in Casey,
Carhart, and Windsor, there is no doubt how Cline should come
out. Indeed, Oklahoma has never claimed the law serves the interest in
potential life or the integrity of the medical profession. After all, if
anything, requiring outdated and less effective dosing requirements disserves
the state’s valid interest in potential life by causing more abortions to occur
later in pregnancy. It also undermines the integrity of the
medical profession. Forcing doctors to use outdated dosing regimens that
increase side effects like pain and bleeding, and reduce the effectiveness of
the medications, requires them to ignore their ethical duty to provide care in
the best interest of their patients. This puts doctors in an untenable
bind that should be found to effectively prevent doctors from performing these
procedures. As the trial court found, “good medical practice and the best
interests of the patient often includes drug use that is not displayed in the
[drug’s label], and requires physicians use legally available drugs according
to their best knowledge and judgment.”
Women obtaining constitutionally
protected abortions are protected “in personhood and dignity” by their equal
constitutional liberty right no less than same-sex couples granted the right to
marry under state law. These women, who rely on the right to abortion
over the course of their reproductive lives to achieve a semblance of social
equality, deserve a similarly exacting analysis of the validity of the state’s
regulatory purpose in restricting their liberty than was granted same-sex
couples in Windsor. While states have some valid interests in
regulating abortion, including an interest in potential life, the Court must
insure that the means chosen to further the state’s interests “must be
calculated to inform the woman’s free choice, not hinder it.” Because
Oklahoma’s law reflects only a bare desire to make medical abortions more
dangerous, painful, and less effective, and to prevent physicians who provide
abortions to provide the best medical care available to their patients, the
lower court’s ruling should be summarily affirmed, or at least allowed to
stand.