Cline v. Okla. Coal. for Reprod. Justice ex rel. Itself

• Citation: 313 P.3d 253
• Decision Date: 29 October 2013
• Docket Number: No. 111,939.,111,939.
• Parties: Terry CLINE, in his official capacity as Oklahoma Commissioner of Health, Lyle Kelsey, in his official capacity as Executive Director of the Oklahoma State Board of Medical Licensure and Supervision, Catherine V. Taylor, in her official capacity as the President of the Oklahoma State Board of Osteopathic Examiners, Petitioners, v. OKLAHOMA COALITION FOR REPRODUCTIVE JUSTICE, on behalf of itself and its Members and Nova Health Systems, d/b/a Reproductive Services, on behalf of itself, its staff, and its patients, Respondents.
• Court: Supreme Court of Oklahoma

313 P.3d 253

Terry CLINE, in his official capacity as Oklahoma Commissioner of Health, Lyle Kelsey, in his official capacity as Executive Director of the Oklahoma State Board of Medical Licensure and Supervision, Catherine V. Taylor, in her official capacity as the President of the Oklahoma State Board of Osteopathic Examiners, Petitioners,

v.OKLAHOMA COALITION FOR REPRODUCTIVE JUSTICE, on behalf of itself and its Members and Nova Health Systems, d/b/a Reproductive Services, on behalf of itself, its staff, and its patients, Respondents.

No. 111,939.

Supreme Court of Oklahoma.

Oct. 29, 2013.

CERTIFIED QUESTIONS OF LAW FROM THE SUPREME COURT OF THE UNITED STATES.

¶ 0 On December 4, 2012, this Court issued a memorandum opinion, finding House Bill 1970, 2011 Okla. Sess. Laws 1276, facially unconstitutional pursuant to the U.S. Supreme Court's decision in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). See Okla. Coal. for Reprod. Justice v. Cline, 2012 OK 102, 292 P.3d 27. The Attorney General filed a Petition for Certiorari with the U.S. Supreme Court on March 4, 2013. On June 27, 2013, the U.S. Supreme Court granted certiorari in the case and certified two questions of law to the Supreme Court of Oklahoma.

CERTIFIED QUESTIONS ANSWERED.

E. Scott Pruitt, Oklahoma Attorney General, Oklahoma City, Oklahoma, Attorney for Petitioners.

Patrick R. Wyrick, Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, Attorney for Petitioners.

Anne E. Zachritz, Oklahoma City, Oklahoma, Attorney for Respondents.

Martha M. Hardwick, Hardwick Law Office, Pauls Valley, Oklahoma, Attorney for Respondents.

Michelle Movahed, Center for Reproductive Rights, New York, New York, Attorney for Respondents.

E. Joshua Rosenkranz & Eric A. Shumsky, Orrick, Herrington & Sutcliffe LLP, New York, New York, Attorneys for Respondents.

Randy Grau, Cheek & Falcone, PLLC, Oklahoma City, Oklahoma, Attorney for Amicus Curiae 83 Oklahoma Legislators and Americans United for Life Action.

Aaron Parks, Norman, Oklahoma, Attorney for Amicus Curiae Dr. Mary Martin, M.D., FACOG; Dr. Rita Sanders, D.O., FACOG; Dr. Pablo Pinzon, M.D., FACOG; and Dr. Michael Glass, M.D., FACOG.

Samuel B. Casey & Amy T. Pedagno, Jubilee Campaign–Law of Life Project, Fairfax, Virginia, Attorneys for Amicus Curiae Dr. Mary Martin, M.D., FACOG; Dr. Rita Sanders, D.O., FACOG; Dr. Pablo Pinzon, M.D., FACOG; and Dr. Michael Glass, M.D., FACOG.

Steven H. Aden, Alliance Defending Freedom, Washington, D.C., Of Counsel for Amicus Curiae Dr. Mary Martin, M.D., FACOG; Dr. Rita Sanders, D.O., FACOG; Dr. Pablo Pinzon, M.D., FACOG; and Dr. Michael Glass, M.D., FACOG.

PER CURIAM.

¶ 1 The Supreme Court of the United States certified two questions of Oklahoma law under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2011 §§ 1601–1611:

Whether H.B. No.1970, Section 1, Chapter 216, O.S.L.2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies.

We answer both certified questions in the affirmative.

Procedural Background

¶ 2 In May of 2011, the Governor signed House Bill 1970, 2011 Okla. Sess. Laws 1276, into law.¹ The Respondents challenged the bill in Oklahoma County District Court. The District Court found H.B. 1970 was unconstitutional and issued a permanent injunction, prohibiting enforcement of H.B. 1970. The Attorney General appealed the order and filed a Motion to Retain in this Court. We retained the case and issued a memorandum opinion on December 4, 2012, in Case No. 110,765, affirming the district court's decision. We found H.B. 1970 was facially unconstitutional pursuant to the U.S. Supreme Court's decision in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). See Okla. Coal. for Reprod. Justice v. Cline, 2012 OK 102, 292 P.3d 27. On January 15, 2013, the Chief Justice issued the mandate in Case No. 110,765.²

¶ 3 The Attorney General filed a Petition for Certiorari with the U.S. Supreme Court on March 4, 2013. The U.S. Supreme Court Clerk filed a letter in Case No. 110,765 on March 14, 2013, advising this Court that a petition for certiorari review of the order in Case No. 110,765 had been filed on March 4, 2013. The Attorney General has not asked this Court to suspend the effectiveness of mandate in Case No. 110,765.

¶ 4 On June 27, 2013, the U.S. Supreme Court granted certiorari in the case and certified two questions of law to this Court. See Terry Cline et al. v. Okla. Coal. for Reprod. Justice et al., ––– U.S. ––––, 133 S.Ct. 2887, 186L.Ed.2d 932 (2013). Further proceedings in the U.S. Supreme Court were reserved “pending receipt of a response from the Supreme Court of Oklahoma.” Id. The certified questions were filed in this Court on July 1, 2013, in Case No. 111,939. The briefs filed in the U.S. Supreme Court were included with the certification order. After the certified questions were filed, the Attorney General filed a request for briefing schedule. This Court entered a briefing schedule on July 16, 2013. Applications for amicus briefs were filed by several organizations, and this Court granted those applications on August 16, 2013. Briefing was completed on October 2, 2013.

This Court Has Jurisdiction to Answer the Certified Questions

¶ 5 Petitioners sought certiorari to the U.S. Supreme Court from Oklahoma Supreme Court Case No. 110,765, which has been mandated and is not before this Court at this time. Oklahoma Supreme Court Rule 1.16 permits a party to file a motion to suspend the effectiveness of mandate if the party contemplates the filing of a petition for certiorari in the U.S. Supreme Court and authorizes suspension of the effectiveness of the mandate until 1) expiration of time to file the petition; or 2) notice of final disposition by the U.S. Supreme Court.³ Until a party makes a request to suspend the mandate pursuant to Rule 1.16 in Case No. 110,765, or upon final disposition by the U.S. Supreme Court, this Court will not suspend or recall the mandate in Case No. 110,765.⁴

¶ 6 The jurisdictional basis for a majority of this Court's decisions is derived from the jurisdiction conferred upon the Court by Oklahoma Constitution Article VII, § 4.⁵ This section vests five types of jurisdiction in the Supreme Court: (1) appellate jurisdiction over all civil matters; (2) jurisdiction to determine whether the Court of Criminal Appeals or the Supreme Court has jurisdiction over a controversy; (3) superintending control jurisdiction; (4) jurisdiction to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs as may be provided by law; and (5) further jurisdiction conferred by statute. ⁶

¶ 7 This Court may also exercise jurisdiction that arises independent of Article VII, § 4, and one example of this occurs when the Court answers a certified question from a federal court. In Bonner v. Oklahoma Rock Corp., we said:

This court needs no explicit grant of jurisdiction to answer certified questions from a federal court; such power comes from the United States Constitution's grant of state sovereignty. By answering a state-law question certified by a federal court, we may affect the outcome of federal litigation, but it is the federal court who hears and decides the cause. “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the state.” Certification assures that federal courts are apprised of the substantive norms of the Oklahoma legal system.

1993 OK 131, n. 3, 863 P.2d 1176, 1178, n. 3 (citations omitted).

H.B. 1970 prohibits the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration and prohibits the use of methotrexate to treat ectopic pregnancies

¶ 8 The U.S. Supreme Court certified two questions of law under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2011 §§ 1601–1611:

Whether H.B. No. 1970, Section 1, Chapter 216, O.S.L.2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies.

The certified questions are questions of statutory interpretation.⁷ The meaning of statutory language presents a pure question of law. W.R. Allison Enters., Inc. v. CompSource Okla., 2013 OK 24, ¶ 10, 301 P.3d 407, 410. Unresolved questions of state law may be answered by this Court if certified questions are presented in accordance with the Revised Uniform Certification of Questions of Law Act, 20 O.S.2011 §§ 1601– 1611. Section 1602 outlines the discretionary power afforded this Court under the Act:

The Supreme Court ... may answer a question of law certified to it by a court of the United States ... if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or Court of Criminal Appeals, constitutional provision, or statute of this state.

20 O.S.2011 § 1602.

¶ 9 In 1996, a U.S. manufacturer filed a new drug application for mifepristone.⁸ The FDA approved the application for mifepristone in 2000. According to mifepristone's FDA-approved final printed label, an informational document providing guidance about a drug's indications, precautions, and dosage, the protocol for administration of mifepristone for the termination of pregnancy requires three office visits by the patient. ⁹ During the first office visit, the patient is given 600 mg of mifepristone orally. Two days later, the patient returns to the office and is given 400 µg (0.4 mg)...