Arizona A.G. asks Supreme Court to allow law regulating use of RU-486 to go into effect


By Dave Andrusko

Arizona Attorney General Tom Horne

Arizona Attorney General Tom Horne

When last we wrote about Arizona’s HB 2036 which requires that any abortion-inducing drugs be administered “in compliance with the protocol authorized by the U.S. Food and Drug Administration,” a three-judge panel of the 9th U.S. Circuit Court of Appeals had predictably struck the law down.

In 2000, the FDA approved the two-drug RU-486 combination for use only for the first seven weeks of pregnancy, and only when given in two doses on separate days, each one administered by a physician.

But the appellate court panel said the limitation “substantially burdened” a woman’s right to abortion.

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 Judge David Bury, who presided over the case, that the limitation would affect 800 women who take the combination after the seventh week and before the tenth week of pregnancy.

On Tuesday, Arizona Attorney General Tom Horne filed papers asking the United States Supreme Court to allow the law to take effect while the case is litigated.

Horne noted that federal courts have already upheld similar but not identical protocols in Ohio and Texas. (See and

Bryan Howard, president of Planned Parenthood Advocates of Arizona, called the move “another effort by extremist Arizona politicians to restrict access to abortion and contraception.”

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 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, as NRL News Today reported.

In testimony at the trial, the attorney for the Center for Reproductive Rights (CRR) 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.

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.

Harkening back to Supreme Court precedents, Bury held that HB 2036 did not place an “undue burden” on the right to abort or 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. A month later the panel said “Arizona has presented no evidence whatsoever that the law furthers any interest in women’s health.”