U.S. Supreme Court

The next big abortion case? It could be a challenge to Okla. pill regs, accepted by SCOTUS in June


A cert grant by the U.S. Supreme Court at the end of its term could be the court’s next big abortion case.

The court granted cert in Cline v. Oklahoma Coalition for Reproductive Justice on June 27, the New York Times reports in an Opinionator column. At issue are Oklahoma regulations requiring doctors prescribing abortion pills to follow the dosage and other instructions on the Food and Drug Administration label.

The U.S. Supreme Court has asked the Oklahoma Supreme Court to clarify which medications are regulated by the statute. The U.S. Supreme Court could opt against hearing the case after it gets the answer to the certified question, but the Opinionator doesn’t think that will happen.

“This case simply presents too tempting a target,” the column says, “for the very reasons that lie behind the emergence of this seemingly technical dispute about medical practice. At issue is the Supreme Court’s own unstable abortion doctrine, specifically on where five justices might be willing to draw a line between acceptable and impermissible obstacles to access to abortion.”

In the case of the abortion drug RU-486, the FDA specified a dosage of 600 milligrams, but doctors now widely prescribe only 200 milligrams, the column says. The FDA label said the drug was safe during the first 49 days of pregnancy, but doctors now prescribe it up to the 63rd day. And the FDA required both doses of the two-dose medication to be taken in the doctor’s office; doctors often allow the patient to take the second pill at home.

The Opinionator says the court’s undue burden standard—permitting abortion regulations that don’t pose an undue burden on the right to abortion—could be at risk since Justice Samuel A. Alito Jr. replaced Justice Sandra Day O’Connor. “All that binds the current court to the [standard in Planned Parenthood v. Casey]—whatever that standard can be said to mean today—is stare decisis, respect for precedent,” the column says. “As the Roberts court begins Year 9, that may not count for much.”

SCOTUSblog coverage of the case is here and here.

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