The 9th U.S. Circuit Court of Appeals is going to keep a temporary hold on a state rule regulating medication abortions and put an appeal of a lower court’s ruling on the fast track.
The appellate court scheduled a May 12 oral argument on the case.
The rule in question requires that medication abortions be done under standards approved by the U.S. Food and Drug Administration. The rule, which was to take effect April 1, was mandated by the Legislature in 2012 and meant to protect the health of women.
Planned Parenthood of Arizona and the Center for Reproductive Rights filed suit in U.S. District Court in Tucson and argued that FDA standards don’t meet current best practices, which require a smaller dose of the abortion pill, commonly known as RU-486.
The 9th Circuit concluded the appeal is the first of its kind in terms of medication abortion and “raises serious legal questions regarding the proper application of the ‘undue burden’ standard to abortion regulations purporting to promote maternal health,” according to the court’s order.
A law regulating abortion will be considered unconstitutional if it creates an undue burden on a woman seeking an abortion.
“We also conclude that the balance of the hardships tip sharply in favor of the appellants, whose patients will likely suffer irreparable harm absent an injunction pending appeal because they will immediately lose access to a common abortion procedure as soon as the law takes effect,” the court wrote.
U.S. District Court Judge David Bury denied Planned Parenthood’s request on March 31 for a temporary hold on the rule while the case was pending.
The lawsuit alleges the regulation will make abortions involving medication more dangerous and become an obstacle to women facing abortions by forcing them take larger doses of the pill and make more trips to the clinic.
Bury ruled that the regulation is not an undue burden on women seeking abortion.
Planned Parenthood attorney Alice Clapman said Bury ignored medical evidence and the views of national medical associations, which oppose the new regulations.
The challenged regulations require that any medication used to induce an abortion be used in compliance with FDA protocols as they are described in the printed label instructions of the medication.
Planned Parenthood argues that those protocols, approved in 2000, are outdated and less effective than methods doctors use today. The lawsuit states that the FDA only regulates the marketing of drugs, not the practice of medicine, so doctors are not bound by the approved protocols.
A woman would have to take 600 milligrams of the drug, commonly known as RU-486, and then return to the clinic 36 to 48 hours later to take 400 micrograms of a second drug, then return in two weeks for a follow up visit.
Under the current method, the woman takes 200 milligrams of RU-486 at the clinic, and takes 800 micrograms of the second drug, misoprostol, at home a day or two later.
The FDA method is safe and effective up to seven weeks, while the current standard is safe and effective for up to nine weeks.
A 2012 law, HB2036, required the health department to create a host of rules regulating abortion, including the one covering the abortion pill.