Oklahoma clarifies abortion law at Supreme Court’s request

OKLAHOMA CITY – The Oklahoma Supreme Court said Tuesday that a 2011 law it struck down as unconstitutional effectively bans all drug-induced abortions in the state, a finding that some legal experts said likely dooms the law’s chances of being upheld by the U.S. Supreme Court.

The nation’s highest court had asked Oklahoma justices to clarify whether the state law applied to three specific drugs that can cause abortions – including mifepristone, more commonly known as RU-486. In all cases, the Oklahoma court answered yes.

Oklahoma’s Supreme Court in December upheld a lower court ruling tossing out the law, saying it created an “undue burden” on the ability of women to obtain abortions. A Republican-dominated Legislature passed the bill, Republican Gov. Mary Fallin signed it and Republican Attorney General Scott Pruitt appealed to the U.S. Supreme Court, which agreed to review the case.

Pruitt and the bill’s sponsor, Rep. Randy Grau, said the court misinterpreted the bill’s intent and that it wasn’t as far-reaching as the justices said.

Enforcement of the law has been on hold since it was challenged by the New York-based Center for Reproductive Rights. Oklahoma is among five states – the others Arizona, North Dakota, Ohio and Texas – that have sought to restrict medical abortions by limiting or banning off-label uses of drugs.

The Oklahoma court’s interpretation of the law is significant because it is the last word on the law’s intent for the U.S. Supreme Court, said Joseph Thai, a constitutional law professor at the University of Oklahoma.

“As interpreted, the sheer breadth of the state law makes it a huge target for the U.S. Supreme Court to strike down for unconstitutionally restricting access to abortion,” said Thai, who served as a law clerk to former U.S. Supreme Court Justices John Paul Stevens and Byron White. “Because the state law has been interpreted as broadly as possible, its chances of survival at the U.S. Supreme Court have slimmed considerably.”

The Center for Reproductive Rights, which sued to block the Oklahoma law from taking effect, praised the Oklahoma court’s findings, saying it recognized that doctors needed flexibility with their patients’ medical options.

Priscilla Smith, a senior fellow at Yale Law School and a former attorney at the Center for Reproductive Rights, described the Oklahoma law as “barbaric” and said it serves no possible state interest. She said she was hopeful the U.S. Supreme Court would just let the state Supreme Court decision stand.