The head of the state’s chief anti-abortion group said she will move to block any legislation to allow doctors in Arizona to use RU-486 to terminate pregnancies using the new standards adopted this past week by the U.S. Food and Drug Administration.
Cathi Herrod, president of the Center for Arizona Policy, contends the FDA acted improperly — and with political motives — in deciding the drug technically known as mifepristone can be safely used to terminate a pregnancy through the tenth week.
“The pro-life movement and pro-life legislators are not going to support a protocol that allows abortion medication through 10 weeks of pregnancy,” she said, no matter what the FDA now says is safe and effective.
That contention that the state should ignore the FDA standards is directly opposite what Herrod was arguing just a week ago.
At that time, the FDA was still having the manufacturer of RU-486 label the drug as useful only for the first seven weeks of pregnancy. But the FDA does not forbid doctors from off-label use of drugs. And physicians from Planned Parenthood and other organizations were routinely using the drug through nine weeks, and at a much lower dosage.
So Herrod got anti-abortion lawmakers to approve legislation requiring doctors to use the seven-week FDA standards then in effect or face loss of their medical privileges. And she argued those standards are there to protect the safety of women and doctors should not be able to deviate.
On Thursday, Gov. Doug Ducey, who calls himself “pro-life,” signed that restriction, even knowing that the FDA standard had changed. Ducey said, though, he is open to follow-up legislation to clarify the matter.
But Herrod said Arizona law should block doctors from following the new FDA standards. She contends that question of what is safe is far from settled.
She acknowledged that the American College of Obstetricians and Gynecologists has long concluded that RU-486 is safe and effective through nine weeks, and at a dosage of just one-third of what the FDA labeling had suggested until this past week. But she dismissed that organization’s findings as unreliable.
“The American College of Obstetricians and Gynecologists support legal abortion for any reason,” Herrod said.
“This is not an objective medical opinion,” she continued. “This is the opinion of doctors who support abortion and have a viewpoint that is about promoting abortion and not about what the first goal is: What’s needed for women.”
Herrod instead looks to the views of groups like the American Association of Pro-Life Obstetricians and Gynecologists. But she acknowledged they have their own biases — including a desire to outlaw abortion entirely.
“The goals are different,” Herrod conceded. “One goal is to promote abortion and to sell more abortions, the other goal is to promote life for pre-born children and their mothers.”
The situation the state now faces is the result of a lawsuit.
In adopting the original 2012 law, legislators said doctors have to use RU-486 only in accordance with FDA labeling.
But last year Maricopa County Superior Court Judge Richard Gama voided that law as an unconstitutional delegation of the Legislature’s authority. He said that’s because the FDA could change that standard at any time, effectively giving the federal agency the ability to change state law.
In response lawmakers approved — and Ducey on Thursday signed — legislation saying that doctors must follow the FDA label as it existed at the end of last year, even if the agency changes its mind in the future.
Bryan Howard, president of Planned Parenthood Arizona, said his organization will sue if lawmakers do anything to leave the now-outdated protocols in place or impose a standard in Arizona that is more restrictive than what the FDA now says is safe.
He already has precedent on his side.
Two years ago, the 9th Circuit Court of Appeals blocked the state from forbidding doctors from using the drug beyond the seven-week FDA standard then in effect. Justice William Fletcher pointed out that the agency does not ban off-label use.
But Fletcher, writing for the unanimous panel, said the problems with the 2012 Arizona law went far beyond that.
He noted that doctors in Arizona already were safely using RU-486 through nine weeks. Fletcher said the state’s argument that the seven-week FDA protocol actually is safer for women does not hold up under closer examination.
“The on-label regimen requires three times more mifepristone than the evidence-based regimen,” the judge wrote. And he said there was nothing presented to the court showing that any doctor was using the drug in a dangerous manner.
“Therefore, on the current record, the Arizona law appears wholly unnecessary as a matter of women’s health,” Fletcher wrote.
That finding is significant: Federal courts have allowed some restrictions on abortions. But they generally have been based on some finding that the limits are necessary to protect the health of women.
What Herrod is suggesting — a standard more conservative than the FDA says is necessary to protect the health of women — would appear to have the same legal problems.