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Hostile appeals court panel challenges pro-life, pro-woman Arizona law

May 14, 2014

 

By Dave Andrusko

Ninth Circuit Court Judge Susan Graber

Ninth Circuit Court Judge Susan Graber

Tuesday’s hearing before a skeptical three-judge panel of the 9th U.S. Circuit Court of Appeals went exactly as you expect from a court that is notorious pro-abortion. At issue is 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” and whether the court will ever allow the state of Arizona to enforce the law.

Pro-abortion litigants, led by Planned Parenthood of Arizona, were unable to persuade U.S. District Court Judge David Bury to block the law’s enforcement while he decided the legal issue. The 9th Circuit quickly jumped in, granting a temporary stay. The issue Tuesday was whether to keep an injunction in place.

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

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

Reading the story written by Howard Fischer of Capitol Media Services, it sounds as if Robert Ellman, the state’s solicitor general, should receive combat pay.

Ellman essentially argued “that lawmakers were entitled to conclude that abortion drugs should be used only as labeled by the U.S. Food and Drug Administration”; that while the Supreme Court has recognized a right to abortion, “It is not the right to choose the method by which you do so” (he noted the law does nothing to limit surgical abortions); and that lawmakers concluded there were studies showing that RU-486 was “dangerous.”

At least two of the judges and Alice Clapman representing the Planned Parenthood Federation of America, countered that (a) following the FDA protocol required an additional visit to the abortionist and therefore meant greater costs; (b) some women are so afraid of a surgical abortion, they will carry a baby to term if they are not allowed to take the two-drugs that make up the RU-486 technique (presumably an allusion to women who are between 7 and 9 weeks pregnant); and (c) the protocol used by abortionists in Arizona is safer than the FDA protocol.

The News Observer reported that two of the three judges not only expressed a willingness to continue the ban but also questioned its constitutionality. Judge Susan Graber said “one concern” she had was that the law is “an effort to flat out reduce the number of abortions by any means.”

Ellman said that was not so, arguing that the rules were put in place to protect women’s health.

The panel will issue a written opinion in the weeks to come.

Please join those who are following me on Twitter at twitter.com/daveha. Send your comments to daveandrusko@gmail.com.

Categories: Judicial