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The Triumph Of Bureaucracy Over Abortion Rights

Publication Date: 
September 09, 2013
The Daily Beast
Michelle Goldberg

Professor Hank Greely spoke with The Daily Beast's Michelle Goldberg on the outcome of Cline v. Oklahoma Coalition for Reproductive Justice and the "Catch-22" embedded in the law. 

The recent revelation that nearly one in 10 abortion clinics in the United States have closed during the past two years has received a lot less coverage than Todd Aiken’s asininities or proposals to force transvaginal ultrasounds on unwilling women. Nor has there been much chatter about the new round of assaults on RU-486, which have led to a case that’s been accepted before the Supreme Court, with potentially far-reaching conclusions. Partly, this is due to fatigue—these days, news of broad new abortion restrictions is barely news at all. Partly, it’s because there’s so much going on in the world—public attention is, understandably, focused on Syria. But it’s also because the anti-abortion movement has been making epochal advances using regulations that are as tedious to read about as they are to describe. In the abortion wars, boredom has become a powerful weapon.

Let’s start with the clinics closings. To find out what’s happening on the ground, Bloomberg’s Esmé E. Deprez did the painstaking work of reaching out to abortion providers all across the country, tallying 58 that have closed since 2011. “A wave of regulations that makes it too expensive or logistically impossible for facilities to remain in business drove at least a third of the closings,” she wrote. According to the Dallas Morning News, at least four more clinics are about to close in rural Texas. The sole clinics in North Dakota and Mississippi remain open only because courts have temporarily blocked the regulations that would shut them down.


Here’s why. When RU-486 was approved, the agreed-upon dose of mifepristone was 600 milligrams, to be used in concert with misoprostol, which had already been approved for the treatment of stomach ulcers. Initially, this abortion-drug combination was considered safe for use during the first 49 days of pregnancy. Doctors have since found that mifepristone is effective at only 200 milligrams, and that the drug combo can be used at any time during a pregnancy’s first nine weeks. This sort of evolution in the use of prescription drugs is very common. “I cannot remember a state ever banning an off-label use of a prescription drug before,” wrote Hank Greely, director of the Center for Law and Biosciences at Stanford. “States generally trust doctors with prescribing authority—and the AMA and state medical associations work to ensure that.”


Then there’s the Catch-22 embedded in the law. As Greely points out, while FDA approval of mifepristone specifies that the drug be used in concert with misoprostol, the FDA never officially approved misoprostol for use as part of an abortion regimen. It simply assumed that misoprostol would be used off-label. “The Oklahoma statute, by requiring only on-label use of RU-486, requires the use of misoprostol, but that same statute, by requiring only on-label use of misoprostol, forbids that use,” Greely writes. Got that?