in a way that I think means the S Ct will dismiss the case as improvidently granted.
Here’s the Oklahoma order, just out today: order.
Basically, the Court (7 justices concurring in the per curiam, two “not voting” – what’s with that?) held that when the Oklahoma statute required that all “abortion-inducing drugs” be used only according to FDA-approved protocols, the proper statutory construction meant that it included all three drugs that same statute had defined as “abortion-inducing drugs”: RU-486 (mifepristone), misoprostol, and methetrexate. The problem is that the FDA approved protocol for using mifepristone requires the use of misoprostol as a second drug. But the FDA approved protocol for using misoprostol does not include its use in causing abortions.
To comply with the statute, you can only use mifepristone with misoprostol, because that’s how the FDA says mifepristone should be used.
But you can’t use misoprostol to help with mifepristone abortions because the FDA labeling for misoprostol doesn’t include that use.
Therefore, under the statute you can’t – EVER – use mifepristone for abortions.
The Oklahoma attorney general argued that this interpretation made the statute nonsensical; the court basically said “hey, that’s what the clear language of the statute says.” And I think (and thought this summer – see here and here – that’s right. As my old high school debate partner, Bryce, used to say “Stupidity is its own reward.” Dumb drafting causes problems.
The Oklahoma Supreme Court didn’t have to reaffirm its earlier opinion – this was just answering the US Supreme Court’s questions. Though the Ok Court did get in some some nasty – and appropriate – shots at legislators playing doctor).
So, what now?
The US Supreme Court cannot – does not have the constitutional power – say that the Oklahoma Supreme Court’s construction of the meaning of the Oklahoma statute is wrong. That’s purely a matter of state law. The only way the U.S. Supreme Court can overturn the Oklahoma decision is for five justices to say that having a state ban a safe, effective, and FDA approved method of medical abortion – TOTALLY – is not an undue burden on a woman’s constitutional right to have an abortion. I suspect at least four justices would be willing to reach that result (as they don’t believe in such a constitutional right anyway), but not five. As the statute has been interpreted by the Oklahoma Supreme Court, it would be very hard for the US Supreme Court to reverse that court. So it won’t try and will “DIG” the case . . . “dismiss as improvidently granted.” Or so I believe.
I don’t think the Ohio statute in the 6th circuit case or the Texas statute in this week’s Texas case had the same problem of requiring that misoprostol be used only in an on-label manner (and hence not in connection with abortions). That means the issue of these statutes won’t go away and the Court will probably have to decide it. But not in Cline v. Oklahoma Coalition for Reproductive Justice.
Hank Greely
