Supreme Court Drops Oklahoma Abortion Case, But That Isn’t Necessarily a Victory
With a number of Texas clinics shuttered on November 1 and assaults on the legal right to have an abortion continuing at a breakneck pace, the news this week that the Supreme Court has changed its mind about reviewing a ban on using RU-486 to provide a medication abortion looked like rare good news. However, it’s too soon for reproductive rights advocates to embrace the docket change as a victory. Instead, it could mean the court is looking at other cases they think could be better opportunities to restrict abortion or overturn Roe v. Wade all together.
Cline v. Oklahoma Coalition for Reproductive Justice was initially expected to be this year’s pick if the courts were looking for a way to limit a right to a legal abortion. Oklahoma legislators passed a ban on using medication for an abortion by any other protocol but the one approved by the Federal Food and Drug Association 10 years earlier, despite medical best practices evolving in the following decade. The Supreme Court put the case on hold while it asked the Oklahoma state supreme court for clarification on whether they believed the ban on “off label use” would in fact create a total ban on all medication abortion, and the lower court eventually responded that they did think that was the case. Subsequently, the Supreme Court chose not to hear the case after all, leaving the Oklahoma law blocked so it will not go into effect.
Anti-choice activists and politicians in Oklahoma say that they intend to offer a different medication abortion restriction in the next legislative session that will pass constitutional muster, and, based on the number of states who have already done so, a model shouldn’t be hard to follow. Most likely, the legislators will introduce some form of telemed abortion ban such as the type that exists in Wisconsin, Missouri and numerous other states, which require a doctor to be in the physical presence of a patient who is taking the medication. Which, once you get down to it, was really all that abortion opponents probably need to have happen in the first place.
The issue with RU-486 and the reason it is opposed by abortion opponents has less to do with the type of abortion than the way that a medication abortion protocol opens the door for expanding access for those who want to terminate pregnancies. After all, if a person is opposed to abortion, whether a pregnant person ends the pregnancy by taking a pill or by a vacuum aspiration really makes no difference. Either way, a pregnancy is over, a baby is not born and, to them, a tragedy has occurred.
But medication abortion takes out the need for a doctor to be physically there to provide the abortion, which can increase the number of abortions that can happen on a daily basis, especially if a telemedicine approach to abortion is implemented. It is for that reason that anti-choice activists passed laws banning telemed abortion in 16 states, knowing that if a pregnant person can access a clinic near her home and video conference with a provider, travel, scheduling, expenses and other barriers are removed.
It’s for this reason that abortion opponents have attempted to shutter Iowa’s telemed abortion program since it began, arguing that it puts patients in danger despite the fact that no complaint by a patient or doctor has ever been filed in all of the years that it has operated. The Iowa program serves to show what could exist if a state truly wanted to expand access to abortion. With over a dozen Planned Parenthood clinics that can offer the medication to patients without them having to travel most of the way across the state just to get to an appointment, abortions have not increased since the program began, but more are occurring earlier in a pregnancy when it is both safer and less expensive.
The most recent attempt to end Iowa’s telemed abortion program happened this fall as the state’s Board of Medicine (all appointed by the Republican governor) voted to eliminate the practice despite a lack of complaints or violations. Now, a judge has ruled that the telemed abortion program will continue while the courts decide if the board acted without justification. “There is simply no evidence the court can rely on to come to the conclusion that the telemedicine abortion procedures, which have been offered for five years without issue, do not protect the health and safety of patients,” the judge ruled, according to the Des Moines Register.
It is this suit over whether medication abortion can be performed without a doctor’s presence that is far more likely to be of interest to anti-abortion activists than a simple banning of medication abortion in the first place. With a telemed ban, abortion opponents can get the majority of what they want when it comes to blocking any increased access for obtaining abortions. It’s also far less likely to be seen as unconstitutional in the way that forbidding an entire type of abortion would be, which was the issue that stopped the Supreme Court from ruling on Cline.
For now, Iowa can continue its program, and hopefully other states will look to it as an example and replicate it, especially states who border low access red states that are making obtaining an abortion a near impossibility. However, if this Iowa telemed decision ever makes its way to the Supreme Court, you can be sure it will become the dangerous, abortion precedent setting Cline was expected to be.
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