Wednesday, June 4, 2014
Ninth Circuit Orders Injunction Against Arizona Abortion Drug Rules
From Staff and Wire Service Reports
The nation’s strictest rules on the use of abortion drugs are unenforceable because they impose an undue burden on women seeking to terminate their pregnancies, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Reversing a lower-court ruling that denied Planned Parenthood Arizona and the Tucson Women’s Center a preliminary injunction, the panel said the plaintiffs are likely to prevail in the litigation, based on two U.S. Supreme Court decisions. The court had previously stayed the rules pending yesterday’s decision.
Judge William Fletcher said the state “presented no evidence whatsoever that the law furthers any interest in women’s health.”
The regulations would ban women from taking the most common abortion-inducing drug — RU-486, or mifepristone — after the seventh week of pregnancy. Women had been allowed to take the abortion pill through nine weeks of pregnancy.
The rules also require that the drug be administered only at the FDA-approved dosage and that both doses be taken at a clinic. The usual dosage is lower, and it’s normally taken at home, decreasing the cost and chance of complications.
The state based its rules on the FDA-approved label for the drug, and the authorizing statute describes off-label use of the drug as “dangerous and potentially deadly.” The plaintiffs’ expert, a doctor involved in the FDA approval process for mifepristone, testified that the FDA “neither prohibit[s] nor discourage[s]” off-label use of FDA-approved drugs and “repeatedly acknowledged that off-label use is common and is sometimes required by good medical practice.”
Fletcher said the rules fail to meet the test of Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992), and Gonzales v. Carhart, 550 U.S. 124 (2007), holding that states may regulate therapeutic abortion, but only insofar as the regulations do not impose an undue burden.
The appellate jurist said the rules fail because they will prevent a woman from getting a medication abortion if her pregnancy is discovered after seven weeks, increase the cost of the abortion, and require patients to incur additional—and sometimes prohibitive—lodging and transportation costs.
He cited the case of Ohio, where a similar law has led to a 65 percent drop in medication abortions. According to the plaintiffs’ evidence, a similar drop would render Planned Parenthood’s Flagstaff clinic no longer viable, making abortions completely unavailable outside the Phoenix and Tucson areas.
Will Continue Fighting
Andrew Wilder, spokeswoman for Republican Arizona Gov. Jan Brewer, said the state intends to keep fighting to get the law implemented. Brewer is a staunch opponent of abortion.
“The state will continue to litigate the case in District Court,” Wilder said.
The Center for Reproductive Rights, which argued the case for the abortion providers, hailed the ruling.
“This law was never more than another backdoor attempt to restrict women’s constitutional right to decide for themselves whether to end a pregnancy, and to cut off access to health care options recommended by the doctors women trust and rely on,” Nancy Northup, the center’s president and CEO, said in a statement.
The abortion drug restriction bill was one of many pushed in recent years by the Center for Arizona Policy, a conservative group. Two of its abortion restriction laws—a ban on Medicaid money for any of Planned Parenthood’s nonabortion services and a ban on abortion after 20 weeks—previously were blocked by federal courts.
Josh Kredit, legal counsel for the group, called the ruling “just another example that the Ninth Circuit is out of step with other courts.” Appeals courts in the Fifth and Sixth circuits have upheld similar restrictions, he said.
“The law will not be in effect, but we will live to fight another day and hopefully it will be appealed to the Supreme Court,” Kredit said.
David Brown, an attorney for the Center for Reproductive Rights, acknowledged that federal courts have split on the issue, but said state courts have blocked laws in two states.
The case is Planned Parenthood Arizona, Inc. v. Humble, 14-15624.
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