In the background of all the state legislative activity on abortion in the last few years has been a specter: the inevitability of a major review of constitutional precedents by the U.S. Supreme Court involving the right to choose. While the governing case generally remains the 1992 decision in Planned Parenthood v. Casey, which essentially upheld Roe v. Wade while setting out an “undue burden” standard for reviewing state efforts to regulate abortion, the Court in 2007 seemed to be creating a potential new line of attack on abortion rights in an opinion written by Justice Kennedy upholding a federal ban on so-called “partial-birth abortions.”
Kennedy’s “loophole” was to give considerable credence to legislative determinations of what is best for women’s health and safety, even if that involved restrictions on women’s rights. Like many observers, I figured the next big SCOTUS test would probably involve one of those recent laws that further restricted relatively late-term abortions, and/or restricted abortion providers via clinic regulations that had the effect of restricting access. But as the New York Time‘s legal reporter Linda Greenhouse explains today, the case that has already been accepted by the Supremes involves less-publicized state restrictions aiming not at clinics but at physician-supervised medical abortions, usually via the drug RU-486. And as such, the case could strike at the core of abortion rights in the early stages of pregnancy rather than gradually restricting them at later stages.
The case is an appeal by the state of Oklahoma from a ruling by its Supreme Court striking down a law that limits doctors’ ability to prescribe the pills used to terminate early pregnancies. The medical abortion regimen, often referred to as RU-486, was approved by the Food and Drug Administration in 2000 as a safe and effective alternative to surgical abortion early in the first trimester. It has been used since then by close to two million American women, currently about 200,000 a year out of some 1.2 million abortions performed annually. The Oklahoma law doesn’t ban the medical procedure. Rather, it requires doctors to follow the dosage and other instructions on the F.D.A. label. Viewed outside its context in the battle over abortion, the law looks perfectly sensible, a routine state regulation of medical practice.
Trouble is, the context is the growing use of smaller dosages of RU-486 than originally recommended by the FDA. So, perversely, antichoice state legislators are counting on the unwillingness of docs to over-prescribe a medication to induce abortion in order to reduce its use altogether. It’s a strategy closely related to another antichoice gambit: prohibiting telemedicine conferences by physicians with patients for purposes of prescribing “abortion pills.” In a climate where judges do not seriously look at the goals of legislators offering such “protection” of women’s “health and safety,” a lot of stealth damage can be done.
As Greenhouse notes, there’s sort of a pincer movement at the heart of the antichoice strategy:
[I]f you think about it, it’s evident why opponents of abortion have begun to focus on the early nonsurgical procedure. Medical abortion is the ultimate in women’s reproductive empowerment and personal privacy. All it takes are two pills: mifepristone, sold as Mifeprex, which blocks the hormone progesterone, without which a pregnancy can’t continue, and misoprostol, taken two days later, which causes the uterus to contract and expel the early pregnancy. In many states, women can take the second pill at home.
Soon a potentially hostile Supreme Court majority could under the same “health and safety” rationale let states shut down clinics and limit access to medical abortions, effectively restricting both early- and late-term abortions. It’s worth worrying about, but it also helps expose the antichoice movement’s crocodile tears for the “victims” of late-term abortions as the tactical ruse it undoubtedly represents.