The top attorney for the state asked federal appellate judges Friday to immediately dissolve the emergency stay that is now keeping Arizona from enforcing its new abortion restrictions.
In legal arguments to the 9th U.S. Circuit Court of Appeals, Attorney General Tom Horne said the limits on how abortion providers can use RU-486 “does not constitute a substantial obstacle to a woman's right to obtain a first trimester abortion in Arizona.” More to the point, Horne told the three-judge panel that was the conclusion reached by a trial judge earlier this week and they should leave his ruling undisturbed.
For the moment, though, the new law, which was scheduled to take effect on April 1, remains on hold despite the earlier ruling by U.S. District Court David Bury. That is because the appellate judges, petitioned by attorneys for Planned Parenthood and the Tucson Women's Clinic, said they want to take a closer look at the issue before allowing the state to impose the new restriction.
But that victory could be short-lived: The appellate court could decide as early as Monday whether to leave the stay in place while the legality of the law is litigated.
The dispute centers around a 2012 law, pushed through by abortion foes, which spells out that RU-486 and a companion drug can be used by Arizona doctors only in the manner specifically approved by the U.S. Food and Drug Administration.
Most significant, the FDA has authorized the drug for abortions only in the first seven weeks of a pregnancy. By contrast, both abortion providers as well as many doctors nationwide use a different dosage in combination with that second drug they say has proved safe and effective through the ninth week.
Attorneys for both clinics challenged the law, saying it interferes with the rights of women to exercise their constitutional rights. Bury, however, spurned their request to block enforcement while he decides that issue, a process that could take months. So the challengers filed for federal appellate court relief on Wednesday and got a temporary emergency stay.
Horne, in Friday's filing, said there is no legal reason for that stay.
He said federal court rules require those seeking to enjoin enforcement of a validly approved state law must show “irreparable harm.” And in this case, Horne said, women beyond the seventh week of pregnancy still have the option of terminating a pregnancy through a surgical abortion.
“The constitutional right to choose to have an abortion does not encompass the right to choose a particular abortion regimen or method,” Horne wrote.
Conversely, Horne said there was no evidence that following the FDA-approved protocols, which involve higher doses of RU-486, pose a significant health risk to women. In fact he said the Legislature, in adopting HB 2036 in 2012, made findings that RU-486 is dangerous which is why it should be used only as approved by the FDA.
That contention has been disputed, with challengers saying the “off-label” use in actually safer than both the FDA protocols and than the surgical abortion which remains the only option for some. But Horne that's not for the courts to decide.
“The FDA-approved protocol for medication abortion also represents an acceptable standard of care,” he wrote. “And the existence of this medical uncertainly is itself a basis on which to conclude that the Arizona law is facially valid.”
And Horne said told the judges the legislative findings “require judicial deference from this court.”
Horne also brushed aside specific concerns about how the law affects women in Northern Arizona where Planned Parenthood has offered only medication abortions.
The FDA protocols require two doses medication be administered 24 to 48 hours apart, and only by a physician. The “off-label” use, however, allows the second medication to be taken by a woman at home.
That is significant because Planned Parenthood President Bryan Howard said the Flagstaff facility has a doctor available only one day a week and therefore unable to administer the second dose. He said that means no medication abortions there, even in the first seven weeks, meaning women would need to travel to the closest facility in Maricopa County.
And the legal papers filed by challengers suggest that would result in some women possibly not getting an abortion. But Horne brushed away that contention.
“Appellants’ musings are nothing more than rank conjecture,” he wrote, and cannot be used to challenge the Arizona law.