Can a state completely ban one type of abortion? This is the question currently being asked by the Supreme Court of the United States.
In June, the court agreed to hear a challenge to a 2011 Oklahoma law that bars doctors from prescribing abortion drugs unless they follow the FDA label. Proponents of the bill argue that the goal is to protect women’s health. “Oklahoma acted to regulate unsafe off-label use of a drug regimen linked to the deaths of at least eight women,” says Americans United for Life attorney Mailee Smith, who drafted the legislation. But critics argue the language is so broad it would block access to all abortifacient drugs, including those used to treat life-threatening ectopic pregnancies. And the Oklahoma Supreme Court agrees. In response to a petition from the U.S. Supreme Court, the state court ruled Tuesday that the bill “effectively prohibits all medical abortions” and is therefore unconstitutional.
It may seem counterintuitive that following FDA labeling will hinder access. But two of the three most commonly used abortion drugs, misoprostol and methotrexate, were originally approved to treat other conditions. The World Health Organization and independent researchers have since found them to be a safe and effective way to end an early pregnancy, and doctors routinely prescribe them for this purpose. But drugmakers have never gone through the costly process of updating their FDA labels. It’s not unusual. Once a drug is approved, the FDA normally does not change the label unless new risks are revealed. But doctors are free to adapt treatments to reflect the latest research, which is one of the reasons why about 20 percent of all outpatient prescriptions are off-label.
A State-by-State LOOK at Restrictions on Abortive Drugs
Hover over a state to see the distribution of restrictions in place. Source: Guttmacher Institute.
Women’s health advocates are particularly alarmed by the Oklahoma Supreme Court’s ruling that the law would ban the use of methotrexate to treat ectopic pregnancies (when an embryo develops outside the womb). uterus). The only other treatment for this condition is surgery. According to Nancy Stanwood, president of Physicians for Reproductive Health and chief of family planning at the Yale School of Medicine, it’s not a safe option for all patients. “Some women may not be candidates for surgery because they have underlying medical conditions or a high risk of anesthesia-related complications,” she explains. “Taking methotrexate off the table would be devastating.”
The Oklahoma Supreme Court also found that the measure would ban the use of the only FDA-labeled abortifacient drug, RU486 (also known as Mifeprex or mifepristone). Why? Because the label of RU486 asks to be taken in combination with another pill that is not FDA approved for abortion, which means that it is impossible to prescribe the two drugs in a manner consistent with their two FDA labels.
Shortly after the Oklahoma legislature passed the abortion drug law in 2011, the Coalition for Reproductive Justice and the Center for Reproductive Rights filed a lawsuit to block it and won. In his opinion, District Judge Donald Worthington concluded that the law was “so completely at odds with the standard that governs the practice of medicine that it can only serve to prevent women from having abortions”. The Oklahoma Supreme Court later upheld the ruling, but did not elaborate on its rationale.
After agreeing to take up the case, the United States Supreme Court asked the Oklahoma Supreme Court to clarify the scope of the law and whether it prohibited all abortifacient drugs, that is how Tuesday’s decision was made. Some court watchers suspect the Oklahoma court’s finding will be enough to persuade the US Supreme Court justices to drop the case. “They may well dismiss the case as granted in a short-sighted way, which means they’re saying, ‘Never mind, we’re not going to interfere,'” says Hank Greely, who directs the Center for Law and Biosciences at the Stanford University. If that happened, the law would remain blocked.
Oklahoma’s measure is part of a wave of abortion drug restrictions sweeping the United States. According to the Guttmacher Institute, in recent years at least 39 states have passed bills cracking down on abortion drugs by requiring, among other things, that doctors be physically present when the patient takes the medicine.
On Monday, a federal court in Texas upheld state’s ultra-strict abortion partyn law requiring women to use RU486 according to the FDA label. Although less restrictive than Oklahoma’s bill, critics argue that the Texas measure — and similar measures on the books of three other states — seriously impinges on the doctor-patient relationship.
Under these laws, doctors would be required to use the exact RU486 regimen called for in its FDA label, which was approved 13 years ago. Since then, studies by the World Health Organization and independent scientists have shown that the drug is just as effective at one-third the original dose. In addition, the drug can be used nine weeks after the start of pregnancy, instead of only seven, as indicated on its label. The WHO and the American Congress of Obstetricians and Gynecologists now recommend a lower dose and fewer doctor visits than those outlined by the FDA. In its Monday ruling, the Texas court explained why the FDA’s recommended approach fell out of favor:
[T]The FDA protocol is certainly more taxing and unpleasant for the woman, requiring at least one additional visit to a clinic and allowing less control over the timing and convenience of medically induced miscarriage. It also takes more time from the doctor, because the doctor has to administer the second dose. The FDA protocol is also slightly more expensive, due to the increased dosage, notwithstanding any additional costs for travel, time off work, and child care. More importantly, the FDA protocol removes medical abortion as an option for any woman who discovers she is pregnant or decides to terminate a pregnancy after [7 weeks].
Still, the court found the law to be constitutional except in cases where a woman’s life was endangered by lack of access to abortion drugs.
When the FDA approved RU486 in 2000, some predicted it would lead to an increase in abortions and make it harder for opponents to fight – no more picketing at abortion clinics. In fact, the total number of abortions has fallen and a greater proportion of women are having abortions in the first weeks of pregnancy, thanks in part to abortion drugs, which can be used earlier than other methods of abortion. readily available. (One in five early abortions in the United States today is performed with medication.)
Abortion drugs can facilitate rural women’s access to early abortions. As new York the magazine reported, in 2008, Planned Parenthood of the Heartland launched a program to improve access in remote areas of Iowa by allowing doctors to remotely prescribe abortion drugs. Women could walk into one of 17 clinics across the state, have an ultrasound, and see a doctor at one of Planned Parenthood’s largest city offices using internet video conferencing, after which the doctor would push a button. and dispensed the first dose.
But this pattern is slowly disappearing. Seventeen states, including Iowa, have laws in place requiring physicians who prescribe abortion drugs to be physically present. As the Texas law requiring abortions to be performed in a particular type of surgical center, anti-abortion measures are apparently aimed at protecting women’s health. But in practice, they block access. If the U.S. Supreme Court goes ahead with the Oklahoma case, Stanford’s Greely says it could be a litmus test for this strategy of restricting abortion through piecemeal concern-based legislation questionable. “Any Supreme Court decision upholding any of these measures,” he says, “makes all of the others all the more viable.”