By Dave Andrusko
U.S. District Court Judge David Bury
Our last post on Wednesday updated you that the 9th U.S. Circuit Court of Appeals had blocked enforcement of Arizona’s HB 2036 which requires that any abortion-inducing drugs must be administered “in compliance with the protocol authorized by the U.S. Food and Drug Administration.”
In 2000, the FDA approved RU-486 for use only for the first seven weeks of pregnancy.
The immediate impact is that abortionists can continue using the two-drug abortion technique through the ninth week of pregnancy. The law had been upheld as recently as Monday by U.S. District Court Judge David Bury.
In its brief order, the famously liberal, pro-abortion appeals court said it was blocking enforcement “in order to provide the court with an opportunity to receive and consider full briefing.”
In practice that means the state of Arizona has through Friday noon to respond to the lawsuit filed by the Center for Reproductive Rights on behalf of the Tucson Women’s Center and Planned Parenthood Arizona. The plaintiffs will then have through Monday to respond to the state and/or make any new arguments.
“At that point the three-judge panel could keep the stay in place, schedule a hearing on the matter or simply decide that a trial judge was correct in concluding an injunction is legally inappropriate in this case,” explained Howard Fischer of Capitol Media Services.
As NRL News Today reported, the chemical abortion regulations were issued by the Arizona Department of Health Services on January 27, under the authority of a law signed in 2012 by Governor Jan Brewer.
Under the FDA protocol, the woman first takes mifepristone which kills the baby, and then on day three takes misoprostol, a prostaglandin, which induces labor. Both are “provided by or under the supervision of a physician.”
The plaintiffs want the period the combination can be used extended to nine weeks and for the woman to take the second drug at home. They 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.
The attorney for CRR concedes the use of the prostaglandin misoprostol is “off-label,” but argues 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.
(NRL News Today has addressed those contentions and the real reasons the abortion industry is pushing chemical abortions in a five-part series written by Randall K. O’Bannon, Ph.D., NRL-ETF Director of Education & Research. The series, “Five Reasons behind the Abortion Industry Push for Chemical Abortions,” began at nrlc.cc/1j5LMa1)
But Judge Bury was not persuaded. He 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.
Federal courts have upheld similar but not identical protocols in Ohio and Texas. (See nrlc.cc/1hw7hB7 and nrlc.cc/1mwrasc).
Arizona Attorney General Tom Horne, said the law is legally defensible.
“I think it’s reasonable that the FDA protocol should be followed,“ he told Fischer. “Following that protocol does not deny any woman an abortion who would otherwise be entitled to one,“ Horne continued. “It simply says that after the seventh week it needs to be surgical rather than a drug.”