(Photo by Flickr user peacearena)
National Review Online is downplaying the seriousness of an Oklahoma law currently before the Supreme Court that forces doctors to ignore safe and accepted medical practice when prescribing the drug RU-486 for medication abortions.
In response to a New York Times blog by legal expert Linda Greenhouse highlighting Oklahoma's appeal of a state supreme court decision that held its new restrictions on the use of RU-486 blatantly violated reproductive rights precedent, the NRO accused Greenhouse of "put[ting Supreme Court Justice Anthony] Kennedy on notice of how he will be treated by the liberal media if he doesn't toe their line in this term's controversial cases." From NRO:
[The case from Oklahoma, Cline v. Oklahoma Coalition for Reproductive Justice,] gives the Court the opportunity to clarify the ambiguous "undue burden" test Casey [v. Planned Parenthood, a 1992 Supreme Court case that allowed states to impose restrictions on access to abortion as long as they did not create an "undue burden" on women] applied to regulations of abortion. Given Kennedy's affection for Casey, there is little likelihood the Court would use this opportunity to overturn that decision, but it could give some a content to the characteristically amorphous standard conceived by Kennedy, Souter, and O'Connor in their plurality opinion. And, from my perspective at least, it seems evident that only an incredibly broad reading of "undue burden" would suffice to overturn the Oklahoma law. After all, it simply adopts the determination of the FDA and still leaves ample other methods of abortion open to women.
But in discussing the Supreme Court's decision to review Cline, NRO fails to mention that in order to "adopt the determination of the FDA," doctors will have to follow guidelines that most consider to be woefully outdated.
When RU-486 was first approved in 2000, the FDA initially recommended that doctors prescribe 600 milligrams of the drug. Research over the last 13 years, however, has shown that just 200 milligrams of the drug is safe and effective. NRO ignored Greenhouse's observation that "[t]he 200-milligram regimen is so widely accepted that the 600-milligram dose is now considered bad medicine, and many doctors would refuse the procedure entirely rather than follow the old guideline."
Unsurprisingly, doctors have chosen to give their patients less medication by prescribing these "off-label" dosages, a common practice that occurs in the years following any drug's introduction to the market, after more research indicates better ways to administer the drug. Emily Bazelon at Slate explains:
What's fascinating and brilliant about the law is the requirement that doctors follow FDA protocol for prescribing medication. Doesn't that sound like a good idea? The problem is that it's not how medicine works. To act otherwise in the case of medical abortion is to treat the doctors who prescribe these drugs--and their patients--as some lower, suspect class.
In general, an FDA protocol is written at the time a drug is approved, based on the available research at the time. After doctors start prescribing a drug, more studies come out, and they may well suggest that a drug has other uses, or can be better administered at a different dose or in a different way. Doctors keep up with the latest findings and shift based on the accumulating evidence. This is what's called "off label" use. "It's perfectly legal and acceptable," says Susan Wood, a public health professor at George Washington University and former FDA assistant commissioner for women's health. (She quit over the Bush-era fight about approving the emergency contraception Plan B). "It's also common in medicine." The American Medical Association estimates that one-half of all prescriptions written are off-label, Yale medical school professor Nancy Stanwood told me.
Yet despite the frequency with which doctors go "off label," state legislators only seem concerned about the practice when it comes to RU-486.
NRO's assertion that the Oklahoma law "still leaves ample other methods of abortion open to women" is spurious. The law at the center of Cline, though it was passed under the guise of "women's health," is actually just another in a long line of constitutionally questionable pieces of anti-abortion legislation that place insurmountable obstacles between women and their doctors, considered by experts like Bazelon to be "the biggest-ever wave of abortion restrictions." Medication abortions are a particularly tantalizing target for anti-choice activists because not only does RU-486 eliminate the costs and burdens associated with repeatedly traveling to the nearest clinic (which could be hundreds of miles away), they also protect women from vocal protestors outside of abortion facilities.
It makes sense, then, that conservatives who have been championing other heavy-handed abortion restrictions would focus in on a drug that gives more reproductive freedom than ever. It is their overreach in placing an "undue burden" on the right to abortion, however, that ensured Supreme Court review.
This was likely the real goal from the start--an invitation for the conservative justices on the Supreme Court to gut Casey and Roe v. Wade, the cornerstone cases of reproductive justice.
The Oklahoma law is specifically intended to dramatically cut down on the use of RU-486, a common and safe form of early abortion that avoids riskier later-term surgical interventions. It is this obvious anti-choice intent that the Oklahoma courts found unconstitutional, when they affirmed that the law's "restriction of the use of the drug RU-486 or 'any other abortion inducing drug, medicine or other substance' ... is so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortion and to punish and discriminate against those women who do."
In short, NRO is pretending this case is about "expanding" the right of privacy beyond what the Supreme Court's prohibition on "undue burdens" requires. The truth is the Oklahoma law is a direct challenge to this fundamental right.