This Supreme Court Case Could Be the Beginning of the End of Roe

(Source: Mark Wilson/Getty Images)

With all fuss over Syria and shutdowns in Washington, you might have missed the Supreme Court’s announcement that it will hear a case that might lead to the end of abortion rights.

The case itself (Cline v. Oklahoma Coalition for Reproductive Justice) wouldn’t be the end abortion rights outlined in Roe v. Wade. But a favorable ruling could grant legislators the power to write “health and safety rules” that would make it impossible to obtain a legal abortion.

Don’t wait for the facts to win out. Cline v. Oklahoma Coalition for Reproductive Justice will hinge on the credibility of 180 “abortion survivors.”

The case examines an Oklahoma law that regulates the use of the drug Mifeprex (the brand name of mifepristone, also known as “the abortion pill”). However, those who wrote the law openly declared that their real intent is to stop doctors from actually using Mifeprex. And that’s the plan: leave a woman’s right to an abortion alone, just make sure she can’t actually get one.

The whole “regulate abortion out of existence” approach dates back to 1992 when a 5-4 decision by the U.S. Supreme Court upheld Roe while expanding the ability of states to use health regulations to limit the practice. That created a loophole that the anti-abortion lobby was quick to exploit, but it wasn’t a great loophole. It only allowed regulation on the basis of “good medical practices,” meaning opponents had to use science or peer-reviewed research.

Then Justice Anthony Kennedy redefined “medical regulation” in 2007 with his opinion in the decision that upheld a law banning most late-term abortions. Kennedy allowed “medical regulation” to include the emotional impact of having an abortion—or, as he described it, a there is no “grief more anguished and sorrow more profound.” As he infamously wrote:

While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.

Got that? Kennedy said you no longer needed data, especially not reliable data, but you can use sorrow and grief to validate your point of view.

Kennedy’s words were music to the ears of the Americans United for Life (AUL), the legal arm of the right-to-life movement. Its leaders are true geniuses in the art of weaving mythical or muddied facts into a powerful messages that confound the opposition.

Consider Virginia, where the AUL and its allies are on the verge of shutting down every family planning clinic in the state. Claiming public safety was at risk, right-to-lifers rammed through laws forcing clinics to spend millions upgrading to emergency care or close. So many are closing.

But Mifeprex abortions had been a tough nut for the anti-abortion movement because they are very safe (more than 2 million have been performed since 2000 without surgery), and usually done in doctors’ offices—and it is tough to take on doctors. That’s when Oklahoma passed a law requiring that doctors must prescribe Mifeprex in only the dosages approved by the FDA.

If you’re confused, that’s just how the right-to-lifers want it. Unless you are in the medical profession, you probably didn’t know that when the FDA approves a drug, it issues safety guidelines and then moves on. Over time, doctors improve on the original guidelines.

Which happened in this case. After the FDA approved Mifeprex, doctors learned that smaller doses worked just fine and were more affordable. So the law covered by Cline wants to force physicians to administer more drugs than are needed at far greater expense to patients.

They also want justices to ignore the 2 million success stories. A brief was filed on behalf of 180 “abortion survivors,” none of whom took Mifeprex. A followup brief discussed the deaths of four women who took Mifeprex, though a close reading of the brief reveals that medical examiners ruled the women actually died from a rare spore that wasn’t directly related to the drug.

Bottomline: If the court rules in favor of Cline, it would allow more and greater political interference in medical administration. Does the Court think that precedent will stop at abortion? There are powerful lobbies spreading misinformation about vaccines and circumcisions, so they would welcome a Cline ruling that would allow them to rewrite medical manuals.

And don’t wait for the facts to win out. The high court’s conservative bloc has a poor track record of understanding complicated research. Justice Samuel Alito, for example, still insists it is impossible for foreign governments to make political donations, despite a mountain of proof.


Peter Lindstrom is a political consultant and researcher. He lives in Washington, D.C.


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