With a federal district court partially upholding a Texas chemical-abortion regulation Monday, things just got a lot more interesting for the potential outcome of the U.S. Supreme Court’s review of an Oklahoma chemical-abortion regulation in Cline v. Oklahoma Coalition for Reproductive Justice.
In Planned Parenthood v. Abbott, the abortion giant is challenging provisions enacted in 2013 in Texas, including a regulation of chemical abortion. Similar to the law in Oklahoma, the Texas regulation requires that physicians abide by the FDA-approved protocol when administering abortion-inducing drugs.
For example, physicians can only administer abortion-inducing drugs in the first 49 days of pregnancy (when the FDA has deemed administration safest) and must follow other aspects of an administration protocol used during clinical trials on the drugs.
The Texas district court got a lot of things wrong yesterday.
It failed to adequately consider the state’s interest in maternal health. The Supreme Court has stated repeatedly that states have an interest in protecting maternal health from the outset of pregnancy and can regulate abortion accordingly—i.e., even in the earliest weeks of pregnancy. But the district court failed to note this interest and did not consider the Supreme Court’s direction that the state’s interest in maternal health must “co-exist” with any interests the mother and physician might have.
But the court also got some things right.
It noted that the additional visit and potential additional cost that could accrue to a woman seeking an abortion by her doctor’s following the FDA-approved protocol do not rise to an “undue burden.” It noted that reasonable alternative procedures exist, and that when such procedures exist the state has broad discretion to regulate, “even if it means subjugating physician- or patient-preference.”
Because, the court concluded, “ample evidence establishes that a reasonable, safe, relatively inexpensive, and effective alternative exists for most women”—surgical abortion—the Texas regulation does not rise to the level of an “undue burden” and is not unconstitutional.
And just when you thought that the district court was on the right track, it took a major swerve. It accepted Planned Parenthood’s argument that there are some women for whom surgical abortion is not an option and who might “need” chemical abortion after 49 days. For those women, the court concluded, the regulation poses an undue burden.
But instead of tailoring its decision to enjoin enforcement of the regulation when there “is a significant health risk during the period falling 50 to 63 days” gestation, the court went too far and stated that the regulation “may not be enforced against any physician who determines . . . to perform a [chemical abortion] using the off-label protocol for the preservation of the life or health of the mother.”
Because “health of the mother” has been defined by the Supreme Court to include anything—including mental health—using “health” as the standard here creates a large loophole in the regulation and allows abortion providers to claim that any woman fulfills this “health” exception. It completely undermines the regulation.
While Americans United for Life’s legal team disagrees that the regulation poses an undue burden for any woman (if surgical abortion is contraindicated for women with certain medical conditions, then chemical abortion in which a woman is sent home to hemorrhage should not be used for women with risky health conditions), the judge could have at least focused the injunction to address only those women who have certain contraindications for surgical abortion. Instead, the court saw a small “problem” with the regulation but entered a broad injunction.
And this is important as you look to Texas’s probable appeal to the Fifth Circuit. We will see the same claims that are at issue in Cline—such as whether the state has “broad discretion” to regulate chemical abortion when there are adequate alternatives.
The district court’s decision in Abbott and what we expect to be the Fifth Circuit’s reversal of the broad injunction in that case lend further support to the state of Oklahoma and a potential Supreme Court opinion upholding chemical-abortion regulations in light of the states’ interest in protecting maternal health.
— Mailee R. Smith is a lawyer with Americans United for Life.