New restrictions on medication abortions will take effect Tuesday morning as had been scheduled.
U.S. District Court Judge David Bury late issued an order Monday afternoon rejecting a bid to block implementation while the legality of the 2012 law is litigated. Bury rejected the arguments by attorneys for Planned Parenthood and the Tucson Women's Center that the burdens on them and their clients of having to live within the law in the interim outweighed the state's interest in imposing the regulations.
Monday's order is far from the last word. Attorneys for the challengers still have an opportunity to prove to Bury that the restrictions violate the liberty and privacy rights of patients by imposing “an unconstitutional burden on their right to choose an abortion.” Challengers also contend that denying some women the right to terminate a pregnancy through a pill rather than through a surgical procedure violates patients’ “rights to bodily integrity.”
But in refusing to issue the injunction, Bury had to conclude that the challengers are not likely to succeed with their claims after all is said and done.
Attorney David Brown of the Center for Reproductive Rights called the ruling “disappointing.”
But the decision is a victory for the anti-abortion Center for Arizona Policy which pushed for the law's adoption.
The fight is over the use by the two medical organizations of mifepristone, an abortion-inducing drug known as RU-486, and misoprostol, a drug taken at home 24 to 48 hours later to ensure the fetus is expelled. Attorneys for challengers said their doctors have determined that combination is effective in terminating a pregnancy through the ninth week.
But HB 2036, the 2012 law that will now take effect, spells out that any medication used to induce abortion must be administered “in compliance with the protocol authorized by the U.S. Food and Drug Administration.” The FDA has approved RU-486 only for the first seven weeks, and only when given in two doses, each one administered by a physician.
The ruling most immediately affects more than 800 women a year who are going to lose an option for the simpler procedure. These are women who last year had a medical abortion beyond seven weeks – the new limit under the Arizona law – but less than 10 weeks, which is the current practice.
The issue is even more critical in Northern Arizona, where Planned Parenthood says having to follow the new state-mandated procedure will eliminate the option for all abortions at its Flagstaff clinic which does only medical abortions. That is because following the state law – and that RU-486 can be administered only by a physician – requires a doctor to be available more than the one day a week she is now.
Bury acknowledged the government cannot ban abortions prior to viability. And he said it also cannot place an “undue burden” on that right or place a “substantial obstacle” in the path of women seeking to exercise that right.
But Bury, in his 14-page ruling, said he does not believe this legislation as does either. He said the law on its face reflects the legitimate goals of the Legislature to protect women from “dangerous and potentially deadly off-label use of abortion-inducing drugs” and require doctors abide by the procedures tested and approved by the FDA.
“In other words, the primary, if not the sole, purpose of the statute is maternal health,” the judge wrote. “The government has a legitimate interest in advancing the state of medical knowledge concerning maternal health and prenatal life.”
Anyway, he noted, there is “ready availability of a safe alternative method of abortion” even if some women will have to undergo surgical procedures to terminate a pregnancy instead of a medical one. He said the record shows surgical abortions are "extremely safe'' when performed in the first trimester of pregnancy – up through 13 weeks – with a mortality rate of only one per million procedures.
Brown said that misses the point.
“For the state Legislature to say, ‘Well, we get to choose for you as long as you have some option, we don't care what you reasons are for not wanting to use it,’ is really offensive to the dignity of women,” he said.
Bury also brushed aside the contention by challengers that there is a “clear advantage” to allowing medical abortions through the ninth weeks because many women do not discover they are pregnant until after the seventh week.
He said there even may even be evidence that the risks of medical abortions have been reduced, along with arguments that following the FDA protocols is actually less safe for women than the procedures used by Planned Parenthood and the Tucson Women's Center.
But none of that, Bury wrote, overcomes his conclusion that state legislators had a “rational basis” for the regulations.
Brown, however, said Bury is using the wrong legal standard.
He said the only question should be whether the new regulations advance the cause of women's health. Brown said that is quite different than the fact there may be equally safe options available that some women may find less desirable.
Monday's ruling is not without precedent.
The 5th U.S. Circuit Court of Appeals just last week upheld a similar requirement in Texas law. And while that decision is not binding on Bury – Arizona is in the 9th Circuit – it provides legal justification for his decision.
Herrod said challengers should recognize those precedents and not waste more state money on appeal, but Brown said the case will continue, with the possibility of asking the 9th Circuit to intercede and put the law back on “hold.”