Arizona heads back to court today in a bid to finally enforce its new restrictions on the use of certain drugs to terminate pregnancies.
The 9th U.S. Circuit Court of Appeals last month placed on hold after the judges there said it is possible that some women in Arizona will suffer “irreparable harm” if their access to certain kinds of abortions is curbed while the legality of the law is litigated. That process could take months — or longer.
But Attorney General Tom Horne is arguing that 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.”
Technically speaking, today's hearing has nothing to do with whether the 2012 law, which was set to take effect last month, is constitutional. The only issue before the judges is whether it can be enforced in the interim.
But the judges will be forced to consider that issue of legality. That's because an injunction blocking a law from taking effect requires consideration not only of hardships on the parties but the likelihood of winning the case after all is said and done. U.S. District Court Judge David Bury, in refusing the initial request for injunction, said it was unlikely that Planned Parenthood and the Tucson Women's Clinic would prevail.
The fight is over the two organizations' use of mifepristone, an abortion-inducing drug known as RU-486, and misoprostol, a drug taken at home 24 to 48 hours later to ensure that 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 the 2012 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.” 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.
David Brown, attorney for the Center for Reproductive Rights, said it's even more complex than that.
He said the FDA has never approved the second drug for abortions. But without that second drug, RU-486 is ineffective — meaning the law would make medication abortions illegal in Arizona.
“The harm to women is very real,” he said.
“They're threatened with losing a safe, effective alternative method of abortion that doesn't require surgery,” Brown said. “And there's simply no reason to take that away from women in Arizona.”
But Horne, in his own legal briefs, said lawmakers are entitled to make that decision.
“The constitutional right to choose to have an abortion does not encompass the right to choose a particular abortion regimen or method,” he wrote. Horne said the Legislature, in adopting the law, made findings that RU-486 is dangerous, which is why it should be used only as approved by the FDA.