Non-surgical abortion may be the next Supreme Court flash point

The next big SCOTUS case on abortion rights in America could be medication abortions, says one court watcher

By Katie McDonough
September 5, 2013 8:55PM (UTC)
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(Bob Brown/AP)

Over the last three years, reproductive rights opponents have tried to restrict access to abortion in every way imaginable: passing pre-viability bans on the procedure, trying to shutter clinics through excessive regulation, instituting mandatory waiting periods and coercive counseling -- really, I could go on (and on).

But as Linda Greenhouse notes in the New York Times, despite the attention recent laws like Texas' 20-week abortion ban are getting, the Supreme Court's next big abortion case may not be about viability and late-term abortion. Instead, non-surgical abortion, often performed within the first six to seven weeks of a pregnancy, may be the issue to determine the new fault lines of abortion access in the United States.


More from Greenhouse:

It’s understandable if you haven’t heard of Cline v. Oklahoma Coalition for Reproductive Justice, which has received relatively little attention since the court accepted it on June 27, the day after the term ended. The lack of attention is itself understandable.

The case is an appeal by the state of Oklahoma from a ruling by its Supreme Court striking down a law that limits doctors’ ability to prescribe the pills used to terminate early pregnancies. The medical abortion regimen, often referred to as RU-486, was approved by the Food and Drug Administration in 2000 as a safe and effective alternative to surgical abortion early in the first trimester. It has been used since then by close to two million American women, currently about 200,000 a year out of some 1.2 million abortions performed annually. The Oklahoma law doesn’t ban the medical procedure. Rather, it requires doctors to follow the dosage and other instructions on the F.D.A. label. Viewed outside its context in the battle over abortion, the law looks perfectly sensible, a routine state regulation of medical practice. (Spoiler alert: it isn’t.)


In the Oklahoma case, a state trial judge, Donald L. Worthington, reviewed the evidence and found that the lower dose of Mifeprex [being challenged by the Oklahoma law] was being used “in a great majority of cases of medication abortions in the United States” and had been “demonstrated by scientific research to be safer and more effective” than the original F.D.A.-approved dose. Requiring doctors to use the higher dose, the judge concluded in an opinion in May of last year, was “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 abortions and to punish and discriminate against those women who do.” The Oklahoma Supreme Court affirmed the decision last December.

As Salon has previously noted, despite ample research showing that medication abortion and telemedicine (the administering of abortion-inducing medication by a trained technician under the remote supervision of a physician) is safe and effective, several states have passed laws restricting the use of abortion drugs, creating a barrier to access, particularly for low-income women.

The medical abortion case, if the court ultimately takes it up (the issue is still pending), may well determine where the court is "willing to draw a line between acceptable and impermissible obstacles to access to abortion" in 2013, a ruling that could radically impact legal safeguards around a woman's right to choose.


For more on how this case may shake out given the court's current makeup (and by that I mean, "What will Anthony Kennedy do?"), read the rest here.

Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at

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Abortion Oklahoma Reproductive Rights Roe V. Wade Scotus Supreme Court Women's Rights