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Oklahoma Anti-Abortion Law Challenged

OKLAHOMA CITY (CN) - Oklahoma's law against off-label use of abortion drugs should be tossed because it illegally delegates authority to the U.S. Food & Drug Administration, a clinic and an advocacy group claim in court.

The Oklahoma Coalition for Reproductive Justice and Tulsa Nova Health Services sued the state on Sept. 30, 2014 in Oklahoma County Court, claiming Oklahoma House Bill 2684 unconstitutionally denies due process and equal protection to women seeking medication-based abortion.

The law bans the use of mifepristone and misoprostol to induce abortion of early pregnancies.

Judge Roger H. Stuart declined to block the law from taking effect one month later, but he did suspend sections that subject abortion providers to legal liability.

The Oklahoma Supreme Court soon after granted a temporary injunction stopping enforcement of the law while its constitutionality is litigated in the lower courts.

The plaintiffs filed a motion for partial summary judgment on Jan. 29.

They say the law illegally delegates authority to the FDA by requiring physicians who provide mifepristone and misoprostol for abortions to comply with out-of-date FDA protocols.

"The act therefore prohibits physicians from prescribing these medications according to 'off-label' protocols," the 22-page motion states. "Physicians who fail to adhere to the FDA protocol are subject to civil liability, as well as a host of other statutory and regulatory consequences."

The plaintiffs say the Oklahoma Constitution vests policy-making authority with the Oklahoma Legislature only. They say the FDA should not be granted authority in this case because it lacks power to regulate the way doctors prescribe medications.

"A statute that neither sets for a legislative policy nor creates clear standards for execution of a legislative policy is constitutionally void because the 'formulation of policy is a legislature's primary responsibility, entrusted by the electorate,'" the motion states. "The Legislature abdicates that responsibility when it passes on the policy-making function to another agency 'not answerable in the same degree to the people.'"

The plaintiffs claim HB 2684 is a "special" law that is not "reasonably and substantially related to a valid legislative objective."

The Oklahoma Attorney General's Office did not immediately respond to a request for comment Tuesday.

This is the second time Nova Health has sued Oklahoma over abortion restrictions.

In March 2012, an Oklahoma County Court ruled in its favor against a law that required women seeking abortions to view ultrasound images of the fetus. The Oklahoma Supreme Court affirmed the ruling in December 2012, deeming the law unconstitutional. The state supreme court also rejected ballot measures for that year's November election that would have asked Oklahoma voters to grant human embryos "personhood" rights.

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