Abortion Fight Won’t See High Court After All | Courthouse News Service
Wednesday, November 29, 2023
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Wednesday, November 29, 2023 | Back issues
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Abortion Fight Won’t See High Court After All

WASHINGTON (CN) - The U.S. Supreme Court on Monday changed its mind about considering an Oklahoma law that restricts the availability of abortion-inducing drugs.

Oklahoma Gov. Mary Fallin signed House Bill 1970 into law in May 2011, amending and expanding state law governing medications used to terminate pregnancies.

The Food and Drug Administration has approved one such medication called Mifeprex (mifepristone or RU-486), but Oklahoma's expanded law aims to cover the "off-label use of drugs known to have abortion-inducing properties."

Physicians face new restrictions under the law to provide patients with mifepristone or other abortion-inducing drugs under the new law.

Oklahoma Coalition for Reproductive Justice had filed suit, alongside Nova Health Systems dba Reproductive Services, calling the restrictions "severe," "contrary to all available medical evidence," "burdensome" and arbitrary.

"The act seeks to elevate politicians' ideological objections to abortion over women's health and well-being," their petition stated.

Though a judge in Oklahoma County struck the law down as infringing on women's due-process rights, the Oklahoma Supreme Court reversed in December 2012.

"In light of Oklahoma's unbroken tradition, dating back to territorial days, of prohibiting abortion except to preserve the life of the pregnant woman, as well as the state's solicitude for the rights of the unborn child in other areas of law, it cannot reasonably be said that the liberty protected by the due process guarantee of art. II, § 7, encompasses a right to abortion - fundamental or otherwise," the decision stated. "There is no evidence that the framers of the 1907 Constitution or the people who adopted it intended to incorporate a right to abortion into the organic instrument of government. Such an intent would have been remarkable in light of the contemporaneous prohibition of abortion except to save the life of the pregnant woman. Accordingly, this court should conclude that the Oklahoma Constitution does not confer a state right to abortion."

It would be "strange legal alchemy" to transform the "negative right" to refuse unwanted medical treatment, and "the corollary right to refuse unwanted medical treatment ... into an affirmative right to insist upon a particular course of treatment or obtain access to certain drugs," according to the ruling (parentheses and emphasis in original).

The justices noted that the law's challengers had argued that H.B. 1970 "coerce[s] some women to have unwanted and unnecessary surgery."

This argument "simply ignores the fact that the decision to undergo an abortion remains with the pregnant woman herself," the justices concluded in a footnote. "H.B. 1970 does not 'coerce' any woman into having an abortion - medical or surgical - it merely regulates the circumstances under which a medical abortion may be performed."

Conferring a right to abortion would be akin to finding that there is a "constitutional right to enlist the assistance of a physician in committing suicide, to obtain laetrile to treat cancer, or to obtain marijuana to treat pain," according to the ruling.

Though lawmakers cannot divest citizens of vested property rights, the court found that "a right to abortion has no roots in the law of Oklahoma."

The U.S. Supreme Court took up the case this past June but dismissed the writ as improvidently granted Monday.

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