Alvare Takes Part in SCOTUSblog Online Symposium

Professor Helen Alvaré was a participant in a SCOTUSblog online symposium, Cline v. Oklahoma Coalition of Reproductive Justice, in which guest contributors with a variety of perspectives shared thoughts on what is at stake in the case and how the Court might ultimately rule.

In the subject case, the U.S. Supreme Court will consider the constitutionality of an Oklahoma law prohibiting the off-label use of abortion-inducing drugs.  In connection with the order granting review, the Court first asked the Oklahoma Supreme Court to answer two questions relating to the legal interpretation of the law.

Alvaré considers the significance of the Court's questions, concluding her analysis by saying, "In sum, Cline has the potential to further delineate the contents of the 'undue burden' standard in abortion cases, and also to highlight the degree to which states may scrutinize abortion providers' medical practices in a context in which the providers would prefer to increase their freedom to offer more RU-486 abortions."

Cline symposium: Abortion, states' medical authority, and the "undue burden" test, SCOTUSblog, September 18, 2013. By Helen Alvaré.

These questions are significant for the following reasons. First, if misoprostol is forbidden for inducing abortions (as its own FDA labeling does not include usage for abortion), then it seems possible that chemical abortions (versus surgical) would be completely unavailable to women in Oklahoma. Challengers argue that this would render Oklahoma’s law an 'undue burden' on women’s rights to abortion, as that test was articulated first in the U.S. Supreme Court’s Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).  Supporters of the law point out that the FDA’s printed protocol for RU-486, however, specifically approves the use of misoprostol in combination with mifepristone, such that the availability of chemical abortions involving misoprostol for the first seven weeks of pregnancy is not at issue."