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Horne gets permission to take abortion drug case to U.S. Supreme Court

abortion gavelAttorney General Tom Horne is asking the U.S. Supreme Court to void a federal appellate court ruling blocking the state from limiting the use of a controversial abortion drug.

Horne on Monday got permission from the 9th U.S. Circuit Court of Appeals to ignore its month-old order sending the case back to a federal judge in Tucson for a trial on whether the state can limit how doctors can use RU-486. The judges agreed with his arguments that the high court, facing contradictory rulings from other appellate courts, is likely to want to weigh in on the issue.

In the meantime, though, the appellate court’s injunction against enforcement of the 2012 Arizona law remains in effect. And that makes medication abortions available to women through the ninth week of pregnancy — at least for the time being.

But Bryan Howard, president of Planned Parenthood Arizona, said Horne’s legal move has less to do with the law and more to do with the attorney general’s efforts to ward off a strong challenge from Mark Brnovich in next month’s Republican primary.

Howard said the Arizona law does nothing to protect the health of women, the touchstone federal courts have used in deciding when states can restrict abortions. He said that Horne, rather than fighting what could be a losing battle in trial court, instead wants the more immediate headlines of a high court appeal.

“It is Horne’s latest attempt to revive his crisis-plagued reelection campaign, this time on the backs of women seeking health care,”Howard said.

“That’s idiotic,” Horne responded.

“It’s my job to defend laws that are passed by the Arizona Legislature,”Horne continued, accusing Howard of “just being a lapdog for the Democrat,” meaning Felecia Rotellini, who intends to run against  whoever is the GOP nominee.

Monday’s order is at least an interim setback for Planned Parenthood and the Tucson Women’s Center.

Both organizations have used RU-486, technically known as mifepristone, for medication abortions in combination with misoprostol, taken at home 24 to 48 hours after the first drug, to ensure that the fetus is expelled. Doctors said they have determined that combination in certain dosages is effective in terminating a pregnancy through the ninth week.

The law says any medication used to induce abortion must be administered “in compliance with the protocol authorized by the U.S. Food and Drug Administration.” And the FDA has approved RU-486 only for the first seven weeks, and only when given in two doses on separate days, each one administered by a physician.

The law took effect April 1 when a trial judge refused to block enforcement.

Last month the appellate court said the limits “substantially burdened” the legal right of women to terminate a pregnancy. There was evidence that the law made medication abortions off limits to hundreds of Arizona women a year, forcing them instead to undergo more complicated surgical abortions.

Potentially more significant, the judges said attorneys for the state never provided any evidence to show the restrictions were necessary to protect the health of women.

Horne contends the appellate judges missed the point. He said the Legislature is legally entitled to decide that doctors have to follow FDA labeling — and that courts should defer to that decision.

“You shouldn’t be able to say that we’re being constitutionally unreasonable for following an FDA protocol,” he said.

But appellate Judge William Fletcher, writing last month for the three-judge panel, said the evidence presented shows no basis for the state’s argument.

“The on-label regimen requires three times more mifepristone than the evidence-based regimen,” the judge wrote. And he said there was no evidence that any doctor was using the drug in a dangerous manner.
In seeking Supreme Court review, Horne has something else working for him: Two other federal appellate courts have upheld similar restrictions in other states.

Horne said that pretty much assures the Supreme Court will have to look at the issue. And he said there’s no reason to take the case back for trial in Tucson now if the high court may decide the issue in the interim.


  1. “controversial” in scare quotes, good grief. I’m so sick of the religious right and the men that love them trying to control my body. Get out of there. There is only room for me in here!

  2. RU-486 is only “controversial” in this country. It has a thirty year history of use with a tremendous body of research and study on it’s efficacy and safety in Europe. The WHO lists it as an “essential medicine”.
    Only in the US is this medication such a “threat”.

  3. Planned Parenthood and the National Abortion Federation won’t follow the FDA protocol because it cuts into their profits. Early abortions cost around $400-450, whether done by surgery or pills. Mifepristone costs $90 per pill with no generic version available. Misoprostol, on the other hand, costs less than $1 per pill. Thus, The FDA protocol requires 3 mifepristone and only 1 mosopristol, costing PP $273 per abortion, leaving them with revenue of only $127 or less. PP and the NAF give only one of the expensive drug and three of the very cheap drug, for revenue of $307, nearly three times as much. They also give the drugs two weeks later in pregnancy, when the effectiveness decreases. If the drugs don’t work, they profit again from the surgical abortion. Ladies, they don’t care about you or your health. They only care about their own bottom line.

  4. This is the rhetoric of the anti-abortion movement. Planned Parenthood is a 501(c)4 non-profit with full transparency of it’s financial records. They do not have a “profit” to cut into. All of Planned Parenthood’s fees are on a sliding scale basis according to income, especially pregnancy termination because it’s not eligible for medicaid reimbursement.
    Off label use of drugs of all classifications are allowed when protocols are established. The FDA hasn’t updated the protocol for RU-486 in over a decade and, in fact, they give LESS medication than what the FDA protocol demands and found it just as effective.
    As for the “two weeks later in pregnancy” opinion, RU-486 has been found to be effective up to as late as 20 weeks of pregnancy, however it does have a decreasing effect after 12 weeks. That is the stage at which the cutoff has been established for full efficacy.
    I also want PROOF of that statement. otherwise, it’s just an opinion, has no backing in medical literature or MAINSTREAM press (i.e. is not “Lifesite News” or, God forbid, Fox “News”) and is nothing but a lie.
    Your entire post is anti-abortion rhetoric with no credible backing. I am therefore taking it with a boulder size grain of salt.

  5. None of this has anything to do with your statement that they “give the drug two weeks later in pregnancy to enhance their profits”. They offer it as an option up to 12 weeks and are perfectly open about it’s efficacy the further along a pregnancy is. This has nothing to do with their bottom line and their nonexistent “profits”.
    Nah, I think I’ll keep that boiulder size grain of salt.

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