Supreme Court will not hear Oklahoma chemical abortifacient case; pro-abortionists ask High Court to stop enforcement of parts of Texas’s HB2 while appeal goes forward

By Dave Andrusko

Supreme Court Justice Antonin Scalia

Supreme Court Justice Antonin Scalia

The Supreme Court today addressed two abortion-related laws, one coming out of Oklahoma, a second from Texas.

The Justices this morning left in place a decision by Oklahoma’s highest court that the state’s 2011 law on chemical abortifacients was unconstitutional. This does not mean the issue of RU-486 and other chemical abortifacients is settled—other states have similar laws–only that the justices chose not to use this opportunity to address the question at this time.

That law requires abortionists to provide abortion-inducing drugs in accordance with procedures tested and authorized by the U.S. Food and Drug Administration and barred any off-label uses of abortion drugs. District Judge Donald Worthington struck this law down in May 2012.

The subsequent legal trail of Cline v. Oklahoma Coalition for Reproductive Justice is long and complicated. When the Oklahoma Supreme Court’s December 2012 decision upholding Judge Worthington’s decision arrived at the United States Supreme Court, it came wrapped in only a few sentences.

The Supreme Court tentatively agreed to hear the case but asked the Oklahoma High Court to spell out its reasoning, specifically how far it believed the law extended. When it responded last week, it essentially reiterated the reasoning of a lower court—that 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. (See “Cline v. Oklahoma Coalition for Reproductive Justice and chemical abortifacients”)

Today without comment the Court said it will not schedule the case for briefing and consideration.

The second abortion case deals with portions of Texas HB 2 law, the filibustering of which made pro-abortion state Senator (and now gubernatorial candidate) Wendy Davis into a pro-abortion icon. As NRL News Today readers know, federal judge Lee Yeakel overturned part of the law—the requirement that abortionists have admitting privileges at a hospital within 30 miles of the abortion clinic–and slightly altered another—the aforementioned chemical abortion protocol.

On Thursday a three-judge panel of the U.S. Court of Appeals for the 5th Circuit reinstated the admitting privileges requirement and said the law would be in effect while it was being challenged. (See “Federal Appeals Panel Reinstates most of Texas’ HB2 which had been struck down Monday by District Judge”)

The abortionists and abortion clinics filed an emergency petition with the Supreme Court asking that the law be stopped while challenges go forward. Justice Antonin Scalia called for a response from the state of Texas by November 12. (Scalia hears emergency matters from the 5th Circuit.)

Yeakel also upheld 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.

But he did hold that for women who are between 49 and 63 days into their pregnancy, if a surgical abortion is “in the sound medical opinion of their treating physician, a significant health risk,” they could have chemical abortions. The three-judge panel consisting of Judges Priscilla R. Owen, Jennifer Walker Elrod, and Catharina Haynes concurred.

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.

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