Federal appellate judges this morning questioned the legal justification of Arizona lawmakers in restricting — if not banning outright — the ability of women to terminate a pregnancy using medication instead of surgery.
Robert Ellman, the state's solicitor general, told the 9th U.S. Circuit Court of Appeals that lawmakers were entitled to conclude that abortion drugs should be used only as labeled by the U.S. Food and Drug Administration. At the very least that means medication abortions for only the first seven weeks of pregnancy; the "evidence based'' practices used by doctors in Arizona allows use through nine weeks.
And Ellman did not dispute that following FDA protocols also are more expensive and require a second trip to a clinic.
But he told the judges that lawmakers were entitled to conclude that following the FDA protocol protects the health of women, something the U.S. Supreme Court has said states may do even if it does impose additional hurdles on access to abortions.
But Judge William Fletcher said there's a flaw in Ellman's argument.
"The evidence now in the record seems to me to show that the 'evidence based' protocol is both safer, less expensive, more convenient than the on-label protocol,'' he told Ellman. And that, Fletcher suggested, means the state erected an "undue burden'' in the path of women who want to terminate a pregnancy without proper justification.
Ellman, however, said the Supreme Court has said only that women have a constitutional right to terminate a pregnancy prior to viability of a fetus.
"It is not the right to choose the method by which you do so,'' he told the judges. And in this case, he said, state lawmakers have done nothing to limit surgical abortions.
But Alice Clapman representing the Planned Parenthood Federation of America said that's hardly a comparison. And she noted there was evidence in the record that some women are so afraid of a surgical procedure that they will give up their right to an abortion and carry an unwanted baby to term.
The immediate decision for the judges to reach is whether state will be able to start enforcing the 2012 law.
It had been set to take effect in April. And a trial judge refused a request to block it while the issue is working its way through the courts.
But the 9th Circuit issued a temporary stay. Today's hearing was to decide whether to keep that injunction in place.
The larger question, though, is whether Arizona legislators had any legal basis for imposing a restriction that put a halt to the commonly used practices of both Planned Parenthood and the Tucson Women's Clinic.