Attorney General Tom Horne is asking the U.S. Supreme Court to void of a federal appellate court ruling blocking the state from limiting the use of a controversial abortion drug.
Horne on Monday got permission from the 9th U.S. Circuit Court of Appeals to ignore its month-old order sending the case back to a federal judge in Tucson for a trial on whether the state can limit how doctors can use RU-486. The judges agreed with his arguments that the high court, facing contradictory rulings from other appellate courts, is likely to want to weigh in on the issue.
In the meantime, though, the appellate court's injunction against enforcement of the 2012 Arizona law remains in effect. That keeps medication abortions available to women through the ninth week of pregnancy — at least for the time being.
But Bryan Howard, president of Planned Parenthood Arizona, said Horne's legal move has less to do with the law and more to do with the attorney general's efforts to ward off a strong challenge from Mark Brnovich in next month's Republican primary.
Howard said the Arizona law does nothing to protect the health of women, the touchstone federal courts have used in deciding when states can restrict abortions. He said Horne, rather than fighting what could be a losing battle in trial court, instead wants the more immediate headlines of a high court appeal.
“It is Horne's latest attempt to revive his crisis-plagued reelection campaign, this time on the backs of women seeking health care,” Howard said.
“That's idiotic,” Horne responded.
“It's my job to defend laws that are passed by the Arizona Legislature,” Horne continued, accusing Howard of “just being a lapdog for the Democrat,” meaning Felecia Rotellini who intends to take on whoever is the GOP nominee.
Monday's order is at least an interim major setback for Planned Parenthood and the Tucson Women's Center.
Both organizations have used RU-486, technically known as mifepristone, for medication abortions in combination with misoprostol, taken at home 24 to 48 hours after the first drug, to ensure that the fetus is expelled. Doctors said they have determined that combination in certain dosages is effective in terminating a pregnancy through the ninth week.
The 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 FDA has approved RU-486 only for the first seven weeks, and only when given in two doses on separate days, each one administered by a physician.
The law took effect April 1 when a trial judge refused to block enforcement.
Last month the appellate court said the limits “substantially burdened” the legal right of women to terminate a pregnancy. There was evidence that the law made medication abortions off limits to hundreds of Arizona women a year, forcing them instead to undergo more complicated surgical abortions.
Potentially more significant, the judges said attorneys for the state never provided any evidence to show the restrictions were necessary to protect the health of women.
Horne contends the appellate judges are missed the point. He said 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,” he said.
But appellate Judge William Fletcher, writing last month for the three-judge panel, said the evidence presented shows no basis for the state's argument.
“The on-label regimen requires three times more mifepristone than the evidence-based regimen,” the judge wrote. And he said there was no evidence that any doctor was using the drug in a dangerous manner.
In seeking Supreme Court review, Horne has something else working for him: Two other federal appellate courts have upheld similar restrictions in other states.
Horne said that pretty much assures the Supreme Court will have to look at the issue. He said there's no reason to take the case back for trial in Tucson now if the high court may decide the issue in the interim.