State Health Director Cara Christ wants a federal judge to throw out a challenge to a controversial new abortion law because no doctor has yet been disciplined for breaking it.
In legal filings in federal court, attorney Douglas Drury who represents Christ tells Judge Steven Logan that he should dismiss the lawsuit filed on behalf of abortion providers and doctors because the case is not “ripe” for consideration.
“Plaintiffs and their patients have not suffered any injury in fact,” Drury wrote.
That same argument is being made by the Attorney General’s Office representing the Arizona Medical Board, the agency that could revoke a doctor’s medical privileges for ignoring the statute.
Hanging in the balance is a law which requires doctors to inform women who want to terminate a pregnancy that “it may be possible to reverse the effects of a medication abortion if the woman changes her mind but that time is of the essence.” The same law says women must be told that information on reversing a medication abortion is available on the Arizona Department of Health Services web site.
Challengers filed suit last month saying there is “no credible evidence” to support the statement.
The law subjects medical providers who do not comply with suspension or revocation of their licenses. And any clinic which does not follow the law can be closed down.
It was supposed to take effect this coming Friday. But state officials agreed two weeks ago not to try to enforce it until Logan gets to hear arguments in October.
In their new filings, though, they want Logan to toss the case now. The various defendants contend the case should proceed only after some doctor has refused to make the statement about abortion reversal, a statement Bryan Howard, president of Planned Parenthood Arizona, calls “junk science.”
But Andrew Beck, an attorney with the American Civil Liberties Union, said Wednesday there is no legal basis for the contention that a doctor need risk professional ruin to challenge the law.
“The law is clear that you don’t have to engage in an act of civil disobedience in order to have either standing or a ripe case,” he said.
Beck said all that’s needed to seek court intervention is that there be a law that forces someone to do something they do not want to do.
“That sort of impermissible choice, the fact that you’re being compelled to act in an unconstitutional way, is enough to allow you to challenge the statute,” he said.
The health director is not relying entirely on the technicality of the law not being enforced in her bid to have the case tossed. She actually is defending the statute and the medical arguments behind it.
In her pleadings, the 2005 graduate of the University of Arizona College of Medicine denies the allegation in the lawsuit that there is “no credible evidence that a medication abortion can be reversed.”
But press aide Holly Ward said none of that should be taken as reflective of Christ’s personal views about either abortion or whether the abortion-reversal process is medically sound.
“The director’s job is to implement the law,” she said.
Medication abortions can be performed through the first nine weeks of pregnancy. It involves two drugs: Mifepristone, commercially known as RU-486, designed to kill the fetus, and misprostol, taken up to 72 hours later, to expel the fetus.
At legislative hearings, Allan Sawyer, immediate past president of the American Association of Pro-life Obstetricians and Gynecologists, said he helped a woman save her pregnancy by administering the hormone progesterone after the first drug is given but before the second.
Challengers acknowledge some doctors “have experimented with this practice.” But that, they argue, should not be the basis for a state law.
“The fact that there are physicians experimenting with using progesterone to counteract mifepristone does not constitute credible, medically accepted evidence that the experimental practice is effective or safe,” the lawsuit states.
Even Sawyer, testifying at the Capitol, said under questioning that the Food and Drug Administration has not approved the use of the drug for that purpose, though what he did is not illegal. Sawyer said only that “studies are ongoing.”
But Josh Kredit, legal counsel for the anti-abortion Center for Arizona Policy, which pushed the legislation, said the evidence the practice works is proven by more than 100 babies born following the procedure.
Christ’s legal defense of the law goes further.
In her response to the lawsuit, she denied a claim by challengers that just a small number of doctors are willing to do the abortion reversal process. “There are at least 290 physicians willing to perform this protocol,” she said through her attorney.
And if nothing else, Christ urges Logan to respect the view of the lawmakers who approved the measure.
“The actions of the Arizona Legislature are entitled to deference,” her attorney wrote. “Duly passed legislation is presumed to be constitutional, and where possible should be given a construction that avoids constitutional difficulty.”