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Supreme Court declines to review decision blocking enforcement of Arizona abortion law, but other appeals courts have upheld similar law

by | Dec 15, 2014

 

By Dave Andrusko

US Supreme CourtThe Supreme Court this morning declined to review a federal appeal court decision that forbids Arizona from enforcing a law that requires abortionists to use federal standards in administering chemical abortions.

But the High Court’s decision in Humble v. Planned Parenthood of Arizona, made without comment, could well not be the final word.

As NRL News Today reported, 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. (For more about his holding, see below.)

In June the 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.”

However as reported by NRL News Today, courts in Texas and Ohio have reached the opposite conclusions about requiring adherence to the FDA regimen, thus paving the way for the Supreme Court, if it chooses, to clarify which approach should apply.

In March 2014, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit Thursday unanimously upheld provisions of Texas’ H.B. 2 that had been challenged by the Planned Parenthood Federation of America, the American Civil Liberties Union, the Center for Reproductive Rights, and several Texas abortion clinics, including the chemical abortion provision.

In October 2012, a three-judge panel of the 6th Circuit Court of Appeals upheld a 2004 Ohio law which requires that the two-drug RU486 abortion technique be administered consistent with the protocol established by the FDA.

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.

Click here to read the December issue of
National Right to Life News,
the “pro-life newspaper of record.”

Judge Bury rejected the argument of lawyers for the plaintiffs “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 no sooner had he decided not to block enforcement while he studied the law further, the 9th circuit panel jumped in.

With the Supreme Court’s decision this morning, Arizona cannot enforce HB 2036.

Categories: Judicial