Bench Memos

The Oklahoma Abortion Case

In June, the Supreme Court granted review of an Oklahoma supreme court ruling that struck down a state law that prohibited the non-FDA-approved use of abortion-inducing drugs. At the same time, the Court certified to the Oklahoma supreme court two questions about the scope of the state law. Whether the Court decides the merits of the case in the upcoming term will depend on how quickly the Oklahoma supreme court answers those questions and on how it answers them.

As the first contribution to a SCOTUSblog symposium on the case (Cline v. Oklahoma Coalition for Reproductive Justice), Notre Dame law professor Carter Snead powerfully argues that the case “can be resolved squarely within the principles set forth by Justice Kennedy in Gonzales [v. Carhart],” the 2007 ruling holding that the federal partial-birth abortion law is constitutionally permissible. (Among his many roles, I’m very pleased to have Carter as a colleague of mine at the Ethics and Public Policy Center.) Carter also concludes that “only the most implausible and tortured reading of the challenged statute” by the Oklahoma supreme court would yield answers to the certified questions that would undercut the case for Supreme Court review. Here is his closing paragraph:

Assuming that the Oklahoma Court adopts the most reasonable interpretation of the challenged law, and assuming further that the U.S. Supreme Court decides Cline on the merits, a straightforward application of Gonzales would require reversal. Oklahoma, like any state, is entitled to regulate the practice of medicine — including abortion — for the purpose of safeguarding the health of the people within its borders. This is a fortiori true when the state legislature’s judgment is supported by substantial (albeit contested) medical authority — including the research relied on by the FDA in the first instance. The case for sustaining the law is clearer still where, as here, its effect is merely to close a two-week window (fifty to sixty-three days’ gestation) during which abortion-inducing drugs may be used, and equally safe (arguably safer) options are available. Failure to reverse the Oklahoma Supreme Court here would reinstate the “abortionist’s veto” that Justice Kennedy rightly rejected in Gonzales and constrict the state’s authority to pursue laws meant to promote the health and welfare of its people.

(Last week on Bench Memos, Carrie Severino discussed Linda Greenhouse’s column about this case.)

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