By Dave Andrusko
In a decision Thursday that will not change the status quo, Maricopa County Superior Court Judge Richard Gama said a 2012 Arizona law requiring abortionists to use federal standards in administering chemical abortions is unconstitutional.
According to reporter Howard Fischer:
The legal problem with the law, said Gama, is that it’s not fixed in stone.
Gama noted that the FDA currently says the drug can be used through the first seven weeks of pregnancy.
But the judge also said the FDA is free to change that standard at any time. More to the point, Gama said any change in FDA standards would automatically change state law.
All that, he said, makes the law an unconstitutional delegation of the Legislature’s powers.
As NRL News Today reported, a three-judge panel of the notoriously pro-abortion 9th Circuit Court of Appeals is hearing a parallel challenge to the Arizona law. In 2014, the panel enjoined the law’s enforcement while that case makes its way through the system. Last December the Supreme Court declined to review the appeal court’s decision, the effect of which is that Arizona cannot enforce HB 2036.
Similar but not identical laws have been upheld by 5th Circuit (the Texas law) and the 6th Circuit Court of Appeals (Ohio’s law).
Passed in 2012, HB 2036 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 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.
In January 2014, the chemical abortion regulations were issued by the Arizona Department of Health Services under the authority of a law signed by Governor Jan Brewer, tracking the FDA regimen.
Planned Parenthood and the Tucson Women’s Clinic challenged the law, arguing that the two-drug combination of mifepristone and misoprostol had 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.”
The trial judge, U.S. District Judge David Bury, had barely decided to refuse to block the law’s enforcement when the 9th Circuit in early April granted a temporary stay.
In June 2014, the 9th circuit appeals court panel blocked the law, holding, “Plaintiffs have introduced uncontroverted evidence that the Arizona law substantially burdens women’s access to abortion services, and Arizona has introduced no evidence that the law advances in any way its interest in women’s health.”
As noted above the most important FDA requirements are that the abortifacient not be used past the seventh week (a limitation which PPFA and other abortion providers freely concede they ignore); that abortionists use three RU486 pills, rather than one; and that the accompanying prostaglandin misoprostol be administered by mouth, not vaginally.
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 trial 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.
When the appeals court panel enjoined the law Arizona Attorney General Tom Horne told Fischer “I think it’s reasonable that the FDA protocol should be followed.“ He added, “Following that protocol does not deny any woman an abortion who would otherwise be entitled to one. ‘It simply says that after the seventh week it needs to be surgical rather than a drug.”