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Abortion restrictions in Oklahoma ready for Supreme Court review

Oklahoma’s highest court said Tuesday that a major provision of that state’s new abortion law is unconstitutional because it “effectively bans all medication abortions,” setting up the issue for a U.S. Supreme Court review.

The Supreme Court said in June that it would consider the law, which restricts how the early-pregnancy procedures can be administered. But it asked the Oklahoma court for clarification about what specifically the law proscribes. The Oklahoma justices had earlier declared the law unconstitutional in a three-paragraph opinion that simply cited U.S. Supreme Court precedent on abortion rights.

With a more detailed answer now in hand, the Supreme Court could decide not to review the Oklahoma court’s decision or schedule the case for briefing and oral argument this term.

The Oklahoma law employs a restriction adopted in Texas, Ohio and several other states. It says that doctors must follow the Food and Drug Administration’s regimen for the use of an “abortion-inducing drug” and forbids them from prescribing medications for “off-label use.”

Supporters of the law say such procedures protect women. But the Oklahoma court concluded that it effectively bans medication abortions, which are used early in pregnancies, because doctors over the past decade have found the FDA protocol to be excessive or outdated.

Only mifepristone, commonly referred to as RU-486, has been approved by the FDA for inducing abortion. But doctors in the past decade have used a second drug — misoprostol — in conjunction with mifepristone to complete the process.

In addition, a third drug, methotrexate, is commonly prescribed to terminate ectopic pregnancies, although the FDA has not approved its use.

The Oklahoma justices said medical practice since mifepristone was approved by the FDA in 2000 shows that only about a third of the labeled dosage is necessary. It said that 96 percent of medication abortions use the smaller dosage plus misoprostol, which can be taken at home instead of at a medical facility.

Those procedures cannot be used under the new law, the court said. Nor may methotrexate be used for ectopic pregnancies, it said.

The Oklahoma court endorsed a district judge’s decision that the restrictions under the law were “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 decision differs from those of other courts. A federal judge in Ohio approved that state’s law requiring doctors to follow FDA protocol. And a judge in Texas this week took a middle ground. The judge did not find the restrictions unconstitutional, but said there must be an exception for the life or health of the woman.

The case at the Supreme Court is Cline v. Oklahoma Coalition for Reproductive Justice.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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