Arizona will not be able to enforce controversial limits on medication abortions, at least not now.
The U.S. Supreme Court this morning rejected a bid by attorneys for the state to overturn a federal appellate court ruling which had concluded the limits illegally infringe on the constitutional right of women to terminate a pregnancy. The justices gave no reason for their decision.
Today’s action is a victory for Planned Parenthood and the Tucson Women’s Clinic, both of which had challenged a 2012 law limiting the use of RU-486 to terminate a pregnancy. The 9th U.S. Circuit Court of Appeals blocked its enforcement after concluding the burden placed on women outweighs the state’s justification for the law.
But it may not be the last word.
Cathi Herrod, president of the anti-abortion Center for Arizona Policy, pointed out that federal appellate courts have upheld similar restrictions adopted by lawmakers in Texas and Ohio. In at least one of those cases, the judges said states are entitled to impose such restrictions unless they erect a “substantial obstacle” to women obtaining an abortion.
Herrod said those cases have yet to reach the U.S. Supreme Court. And she said that ultimately could force the justices to decide which legal approach is correct and whether, as she contends, the 9th Circuit ruling that states need medical justification before abortions can be restricted is “out of step” with the rest of the country.
At issue is the use of RU-486, technically known as mifepristone, for medication abortions.
The 2012 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 drug company’s FDA-approved labeling for the drug says RU-486 can be used only for the first seven weeks of pregnancy – and only when given in two doses on separate days, each one administered by a physician.
That blocked the practice by doctors in Arizona who have been using RU-486 through the ninth week, in a different and single dosage. The procedure also includes with misoprostol, a separate drug designed to ensure the fetus is expelled, normally taken at home 24 to 48 hours apart, to ensure that the fetus is expelled.
A federal judge refused to block its enforcement.
But the 9th U.S. Circuit Court of Appeals said earlier this year the limits “substantially burdened” the legal right of women to terminate a pregnancy. The judges said there was evidence that the law would make medication abortions off-limits to hundreds of Arizona women a year – particularly those who do not discover they are pregnant until after the seventh week – forcing them instead to undergo more complicated surgical abortions.
The appellate judges said there were other burdens, including the cost of the extra dose of RU-486 required under FDA protocols as well as the requirement for a second visit to a clinic.
In their ruling, the appellate court acknowledged there are times when states can impose abortion restrictions if there are legitimate medical grounds.
“Here, the medical grounds thus far presented are not merely feeble,” wrote Judge William Fletcher for the court. “They are non-existent.”
Monday’s Supreme Court action came despite arguments by Attorney General Tom Horne.
He argued that the appellate judges, in seeking medical justification for the restriction, were missing the point. He argued that 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,” Horne argued to the court.
Herrod echoed that theme in saying that said Monday’s ruling is erroneous.
“The Supreme Court has in numerous abortion-related areas has allowed lawmakers to set the law, to set the standard and to regulate the practice of abortion and protect women from the dangerous and deadly practices of the abortion industry,” she said.
But Cecile Richards, president of Planned Parenthood Foundation of America, said this “dangerous and misguided law” should never have been approved in the first place.
“Politicians are not medical experts,” she said in a prepared statement.
Nancy Northup, president of the Center for Reproductive Rights, echoed the theme in her own statement praising the high court action.
“Women who have made the decision to end a pregnancy will continue to get safe, legal care based on the expertise of their doctors, not politicians who presume to know better,” she said.