Attorney General Tom Horne is asking the U.S. Supreme Court to rule that Arizona lawmakers can legally restrict the right of women to a medication abortion if they have “justification” to do so and other options remain.
In legal papers filed Tuesday, Horne said legislators did nothing wrong in making it illegal for doctors in Arizona to use mifepristone to induce an abortion beyond the seventh week of pregnancy. That is as it is labeled by the manufacturer pursuant to regulations of the U.S. Food and Drug Administration.
Horne conceded that Planned Parenthood and the Tucson Women’s Center have been using that drug, in combination with another, through the ninth week. That is not illegal under federal law, as the FDA does not prohibit “off-label” use of medications.
But Horne said lawmakers had evidence that the drug, more commonly known as RU-486, can be dangerous. And he said reliance on the FDA labeling provides a legitimate defense for legislators even if there might be evidence to the contrary.
Horne’s legal move seeks to get the high court to allow the restrictions to take effect while the legality of the law is debated. That had been blocked earlier this year by the 9th U.S. Circuit Court of Appeals.
Hanging in the balance is whether Arizona women beyond the seventh week who are denied a medication abortion would instead have to undergo a potentially more complicated surgical procedure to terminate a pregnancy.
Horne’s filing brought a sharp reaction from Bryan Howard, president of Planned Parenthood Advocates of Arizona. He called it “another effort by extremist Arizona politicians to restrict access to abortion and contraception” despite being told that it violates women’s privacy rights and “their ability to make their own health care decisions without interference.”
But Horne told the high court that women have no legal right to choose an abortion method as long as a safe alternative remains. He said it does, with surgical abortions more common than medication ones in Arizona.
And Horne said most women can continue to exercise their constitutional rights to terminate a pregnancy even with the law.
Horne may get his wish for the Supreme Court to intercede.
He pointed out the 9th Circuit ruling blocking enforcement of the Arizona law is contrary to conclusions reached by two other federal appellate courts reviewing similar statutes from other states. That conflict increases the chances the justices will seek to set a single standard nationwide.
Whether they see it Horne’s way, however, remains to be seen.
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.
But in June the appellate court said the limits “substantially burdened” the legal right of women to terminate a pregnancy.
The judges said 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. And even those still eligible for a medication abortion would need two visits to a doctor instead of the one under the current practice.
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 which they said is the keystone to whether a state can restrict abortions.
However, Horne wants to turn the issue around, citing the failure of challengers to show that a large number of women – something he defines as a “large fraction” – would be denied their constitutional rights because of the law. Absent that, he said, lawmakers were entitled to decide that doctors have to follow FDA labeling and that courts should defer to that decision.
But appellate Judge William Fletcher, writing 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, something he found odd given that lawmakers were concerned about the safety of the drug. And Fletcher said there was no evidence that any doctor using the drug “off label” was doing so in a dangerous manner.