Academic journal article Columbia Journal of Gender and Law

Mifepristone Protocol Legislation - the Anti-Choice Movement's Disingenuous Method of Attack on the Reproductive Rights of Women and How Courts Should Respond

Academic journal article Columbia Journal of Gender and Law

Mifepristone Protocol Legislation - the Anti-Choice Movement's Disingenuous Method of Attack on the Reproductive Rights of Women and How Courts Should Respond

Article excerpt

INTRODUCTION

In the past decade, five states have passed laws prohibiting the off-label use of the abortion-inducing drug mifepristone. (1) While these laws are ostensibly passed to protect women from misuse of a dangerous drug, in actuality they represent one of the latest steps in the anti-choice movement's efforts to dismantle the abortion right iterated in Roe v. Wade (2) and controlled by Planned Parenthood of Southeastern Pennsylvania v. Casey? These laws prevent doctors from practicing evidence-based medicine in the manner that they believe best serves their patients, and cost women time and money while potentially exposing them to unnecessary side effects and risks. In addition, these laws force (4) women with pregnancies of forty-nine to sixty-three days of gestation to undergo surgical abortions when medical abortions would be equally appropriate. As with most anti-choice initiatives, the women who are the most affected are those who are most vulnerable. (5) Women without economic or family resources, those in abusive relationships, and teenagers, who often discover their pregnancies later than adult women, are required to undergo unnecessary surgical procedures and spend money and time that they cannot afford because of politically-motivated legislation without a legitimate medical rationale.

Courts examining mifepristone-regulating legislation have come to different conclusions. Two state courts have addressed these laws and determined that they are unconstitutional: Judge Wickham Corwin of North Dakota's East Central Judicial District enjoined North Dakota's law requiring adherence to the Federal Drug Administration (FDA) protocol pending further proceedings, (6) and the Supreme Court of Oklahoma held that Oklahoma's FDA protocol law was unconstitutional under Casey. (7) This issue has also come up in federal court. In a constitutional challenge to Ohio's ban on off-label use of mifepristone, a Sixth Circuit panel affirmed the state's motion for summary judgment on Planned Parenthood's claims that the law was unconstitutionally vague, violated patients' right to bodily integrity, and that it posed an undue burden to women seeking an abortion in the state of Ohio. (8)

On June 27, 2013, the Supreme Court granted certiorari to decide whether Oklahoma's mifepristone protocol legislation violates the constitution under Casey. (9) Due perhaps to re-election concerns in a state with strong anti-choice leanings, (10) the Supreme Court of Oklahoma was very succinct in the opinion being appealed. In affirming the trial court's determination that the law was unconstitutional, the Oklahoma Supreme Court did not fully explain its reasoning, but instead wrote briefly that the "matter is controlled by the United States Supreme Court decision in Planned Parenthood v. Casey" and "this Court is duty bound by the United States and the Oklahoma Constitutions to 'follow the mandate of the United States Supreme Court on matters of federal constitutional law.'" (11) The United States Supreme Court sought clarification from the Oklahoma Supreme Court on the breadth of H.B. No. 1970, Section 1, Chapter 216, O.S.L. 2011, the Oklahoma mifepristone protocol law, before proceeding with the case, (12) and dismissed the writ of certiorari as improvidently granted after the answer was received. (13) Because the Oklahoma opinion is so brief, this Note focuses on the Sixth Circuit and North Dakota opinions in more detail because they fully set forth the constitutional reasoning of courts upholding and striking down mifepristone protocol legislation.

This Note argues that courts should strike down legislation restricting mifepristone use to the FDA protocol because it fails rational basis review, the lowest standard for judging legislation. (14) There is no evidence that the protocol approved by the FDA is any safer for women than the protocol currently being used by abortion providers, and the risks from mifepristone are lower than those of many other medications commonly prescribed offlabel. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.