A federal appeals court on Wednesday put Arizona's new abortion law on hold, at least for the time being.
In a brief order, the 9th U.S. Circuit Court of Appeals blocked enforcement of the law, which governs how medication abortions can be performed, “in order to provide the court with an opportunity to receive and consider full briefing” on the issue.
The order runs through at least early next week.
Judges gave attorneys for the state until noon on Friday to respond to the legal filings by the Tucson Women's Center and Planned Parenthood Arizona. Then the challengers to the law will have until Monday morning to add anything more.
At that point the three-judge panel could keep the stay in place, schedule a hearing on the matter or simply decide that a trial judge was correct in concluding an injunction is legally inappropriate in this case.
In the interim, Wednesday's order most immediately means that doctors in Arizona can still use RU-486 and another drug to induce abortions through the ninth week of pregnancy.
The law at issue requires doctors to follow protocols for the drug issued by the U.S. Food and Drug Administration, and those bar its use to terminate a pregnancy after the seventh week, making a surgical abortion the only legal option beyond that.
On Monday, U.S. District Court Judge David Bury rejected a bid by attorneys for the abortion providers to enjoin enforcement of the law while they challenge its legality. Bury ruled that the hardships imposed on women who will lose access to medication abortions is insufficient to overcome the presumption that state legislators had a legitimate reason to enact it.
That put the law in effect Tuesday morning – until the 9th Circuit interceded.
Nothing in Wednesday's order guarantees that the appellate court will reach a different conclusion than Bury, but it does give the abortion providers a chance to make their case to this three-judge panel that Bury used the wrong legal standards in reaching his conclusion.
But it is at least a temporary setback for the anti-abortion Center for Arizona Policy which pushed the original measure through the Legislature in 2012. But CAP President Cathi Herrod said she is undeterred, pointing out that federal appellate courts in two other jurisdictions have found similar measures to be constitutional.
“I am confident that after considering the fact, the 9th Circuit Court of Appeals will uphold Arizona's law,” she said in a prepared statement. Herrod said Bury was correct in his finding that there is a valid purpose behind the legislation.
“The state Legislature passed this law to protect the health and safety of women, and ensure that this dangerous medication is distributed only as the FDA approved,” she said.
David Brown, attorney for the Center for Reproductive Rights, has acknowledged that doctors are using RU-486 “off-label,” meaning not as specifically approved by the federal agency.
But Brown said none of that violates federal regulations. More to the point, he said that the medical community has found through its own practices for the last decade that the drug can be used safely in smaller doses when combined with another medication.
Attorney General Tom Horne, who represents the state in the lawsuit, said he believes the law is legally defensible.
“I think it's reasonable that the FDA protocol should be followed,” he said.
“Following that protocol does not deny any woman an abortion who would otherwise be entitled to one,” Horne continued. “It simply says that after the seventh week it needs to be surgical rather than a drug.”
That's the conclusion reached by judges in two other federal circuit courts. But attorneys for the clinics said the legal precedents set in the 9th Circuit, which governs Arizona, have made it clear that restrictions are appropriate only when they “could be reasonably understood to promote, in some legitimate fashion, the interest in maternal health.”
Brown said that despite claims by the Legislature, there is no factual evidence in the record that forcing some women to have surgical abortions instead of medication abortions actually promotes their health.
Bryan Howard, president of Planned Parenthood Arizona, acknowledged the stay is only brief.
“But this injunction means a great deal to a woman seeking a safe, legal abortion,” he said in a prepared statement.