Arizona will not be able to enforce its new law limiting medication abortions, at least not for another six weeks.
In a brief order Tuesday, the 9th U.S. Circuit Court of Appeals 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. So the judges issued an injunction blocking the law from taking effect until they hear arguments on the issue.
And that will not happen until May 12.
Tuesday's order is at least a temporary setback for abortion foes who convinced lawmakers in 2012 to spell out in statute that the abortion drug RU-486 can be used only as specifically authorized by the U.S. Food and Drug Administration.
That federal regulation allows the drug to be used to induce an abortion only through the seventh week of pregnancy. The Tucson Women's Clinic and Planned Parenthood have both used that drug, in combination with a second, through the ninth week.
Attorneys for both challenged the law as an unconstitutional infringement on women's rights, but U.S. District Court Judge David Bury refused to block its enforcement while he decides the legal issue, something that could take months.
Officially, the law took effect on April 1. But the 9th Circuit temporarily stayed that ruling the following day; Tuesday's order makes that into a formal injunction.
Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said Tuesday's order is not a finding by the court that the law is unconstitutional, and she pointed out federal appellate courts in two other jurisdictions have upheld similar restrictions from Texas and Ohio.
But in their unsigned order, the three-judge panel said the Arizona law “raises serious legal questions” of whether the statute creates an “undue burden” on women who want to terminate a pregnancy.
Attorneys for challengers have acknowledged that states can impose reasonable restrictions on abortion if there is some showing they are necessary to promote maternal health. In this case, they argued, there is no actual proof that requiring clinics to follow the FDA protocols actually helps women.
In fact, they argued, there is evidence that the law actually works in the reverse, as it precludes a medication abortion for women in the eighth and ninth week of pregnancy and instead makes a surgical abortion the only legal option in Arizona.
The judges said the delay until a scheduled May 12 hearing will not only give them more time to consider the issue but decide if the law should remain stayed beyond that date while the trial goes ahead in Bury's court.
Challengers are not relying on their federal court claims to kill the new law.
Jennifer Miller, spokeswoman for the Center for Reproductive Rights, which is representing the Tucson Women's Clinic, said Tuesday a lawsuit is being filed in state court saying that lawmakers acted illegally in deciding that Arizona's abortion rules will be governed by an outside agency, in this case the FDA. They also contend the Department of Health Services did not follow proper procedures when crafting the rules to implement the 2012 law.