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Cline v. Oklahoma Coalition for Reproductive Justice and chemical abortifacients

by | Oct 31, 2013

By Dave Andrusko

OKSCI’m no lawyer but even I know that courts are not supposed to go out of their way to look for reasons to invalidate legislation. It is the deference a co-equal branch should give another co-equal branch. But that’s not what the Oklahoma Supreme Court did in its 21-page response to queries from the United States Supreme Court about the Oklahoma High Court’s decision to invalidate a 2011 law.

The case– Cline v. Oklahoma Coalition for Reproductive Justice—addresses an abortion issue much in the news recently: chemical abortifacients.

On Monday, Austin-based U.S. District Judge Lee Yeakel ruled on portions of Texas’s pro-life HB 2. The big news was (to borrow from Sherlock Holmes) the dog that didn’t bark: pro-abortionists did not challenge the prohibition on abortions performed on babies capable of feeling pain. There are now ten states with the Pain-Capable Unborn Child Protection Act on their books.

While he invalidated the requirement that abortionists have admitting privileges in a hospital within 30 miles, Yeakel allowed most of the requirements surrounding the use of the two-drug RU-486 abortion technique.

He did not find it an “undue burden” for abortionists to follow the FDA protocol requirement that limits the use of the RU-486 abortion technique to the first 49 days (The abortion industry wants it expanded to 63 days.)

Yeakel upheld the requirement, noting that there is an alternative for the period between 49 days and 63 days: a surgical abortion. The only women for whom this limitation would constitute an undue burden are women “for whom surgical abortion is, in the sound medical opinion of their treating physician, a significant health risk.” Those women would be allowed to have a chemical abortion.

In Ohio pro-abortionists spent the better part of a decade trying to gut a 2004 law which also requires that the two-drug RU486 abortion technique be administered consistent with the protocol established by the FDA. Finally, in late November 2012, the full Sixth Circuit Court of Appeals turned down Planned Parenthood and upheld HB 126.

Oklahoma’s Supreme Court held otherwise. In October 2011 The Center for Reproductive Rights filed a legal challenge to the 2011 law. A lower court found the law unconstitutional, concluding the law is “so completely at odds with the standard that governs the practice of medicine” that the legislature’s only objective was to keep women from obtaining abortions.

The Oklahoma Attorney General petitioned the U.S. Supreme Court to review the ruling, which it agreed to do—but not before asking the Oklahoma Supreme Court to spell out what it understood to be the reasons the law was unconstitutional. The Oklahoma Supreme Court did so on Tuesday, leaving it up to the U.S. Supreme Court to decide whether to allow the Oklahoma to stand or schedule the case for briefing and oral argument this term.

Please join those who are following me on Twitter at twitter.com/daveha. Send your comments to daveandrusko@gmail.com.

Categories: Judicial