9th Circuit overturns Arizona RU-486 law, state vows to keep fighting

 

By Dave Andrusko

Judge William Fletcher

Judge William Fletcher

Less than a month ago, a three-judge panel of the famously liberal, pro-abortion 9th U.S. Circuit Court of Appeals heard oral arguments in a challenge to Arizona’s HB 2036, a 2012 law that requires that any abortion-inducing drugs be administered “in compliance with the protocol authorized by the U.S. Food and Drug Administration.”

Federal courts have upheld similar but not identical protocols in Ohio and Texas (see nrlc.cc/1hw7hB7 and nrlc.cc/1mwrasc).

But based on the highly skeptical May 13 questioning, the results (which formally were issued today) could have been rendered the same day: the law must go.

Writing for the panel, Judge William Fletcher, concluded, “Arizona has presented no evidence whatsoever that the law furthers any interest in women’s health.”

That is most decidedly not what the trial judge, U.S. District Court Judge David Bury, found.

In January the Arizona Department of Health Services issued rules tracking the FDA regimen, which approved RU-486 for use only for the first seven weeks of pregnancy. The plaintiffs, Planned Parenthood Arizona and Tucson Women’s Center, argued that the two-drug combination of mifepristone and misoprostol has been used safely through nine weeks and to limit their use to seven weeks is “an unconstitutional burden on their right to choose an abortion.”

They also wanted woman to take the second drug at home, which also was not part of the FDA regiment.

The plaintiffs told Judge Bury that the limitation would affect 800 women who take the combination after the seventh week and before the tenth week of pregnancy.

U.S. District Court Judge David Bury

U.S. District Court Judge David Bury

However Judge Bury rejected the argument of lawyers for Planned Parenthood Arizona and Tucson Women’s Center “that the burdens on them and their clients of having to live within the law in the interim outweighed the state’s interest in imposing the regulations,” according to reporter Howard Fischer.

Judge Bury harkened back to Supreme Court precedents and held that HB 2036 did not place an “undue burden” on the right to abort nor did it place a “substantial obstacle” in the exercise of that right.

In his 14-page ruling, Bury said that on its face the laws reflects the legitimate goals of the Arizona legislature to protect women from “dangerous and potentially deadly off-label use of abortion-inducing drugs” and require abortionists to adhere to the procedures tested and approved by the FDA.

“In other words, the primary, if not the sole, purpose of the statute is maternal health,” Judge Bury wrote. “The government has a legitimate interest in advancing the state of medical knowledge concerning maternal health and prenatal life.”

He concluded that the injunction sought by Planned Parenthood Arizona and Tucson Women’s Center “is not in the public interest.”

But Judge Bury had barely decided to refuse to block the law’s enforcement while deciding the legal issue before the 9th Circuit granted a temporary stay.

If there was any doubt where the panel was likely headed May 13, it was probably resolved when they said the law “raises serious legal questions” of whether the statute creates an “undue burden” on women who want to abort.

David Brown, the attorney for the Center for Reproductive Rights, conceded the use of the prostaglandin misoprostol is “off-label,” but argued the “medical community” has found that it is safe to use the two drugs in different quantities than recommended by the FDA and up to nine weeks in pregnancy.

Andrew Wilder, spokeswoman for Arizona Gov. Jan Brewer, told the Associated Press that the state intends to keep fighting to get the law

“The state will continue to litigate the case in district court,” Wilder said.