By Dave Andrusko
Later today a three-judge panel of the famously liberal, pro-abortion 9th U.S. Circuit Court of Appeals will hear 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.”
In 2000, the FDA approved RU-486 for use only for the first seven weeks of pregnancy and with a particular combination of the two drugs, mifepristone and misoprostol.
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 U.S. District Court Judge David Bury that the limitation would affect 800 women who take the combination after the seventh week and before the tenth week of pregnancy.
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. The panel said it needed a full briefing to decide whether it would issue an emergency stay. At that time, the panel asked for briefs by April 4.
According to reporter Howard Fischer, when the panel issued an injunction last month, the appeals court
“said it is possible some women in Arizona will suffer ‘irreparable harm’ if their access to certain kinds of abortions is curbed while the legality of the law is litigated, so it issued an injunction blocking the law from taking effect until arguments on the issue are heard. That will not happen until May 12.”
If there were any doubt where the panel is likely headed, 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, 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.