PHOENIX - A judge refused to block the state from enforcing new regulations next week that an attorney for the state's largest abortion provider said will impair the ability of women to terminate their pregnancies.
Judge Donald Daughton of Maricopa County Superior Court said Planned Parenthood Arizona waited too long before asking him to bar the Department of Health Services from enforcing a new rule prohibiting anyone other than a doctor from performing various medical procedures before or after an abortion. He pointed out the state approved the new rules at the end of April. But Daughton noted that Planned Parenthood did not file its legal papers until Oct. 14 - and the rules are set to take effect Monday.
Planned Parenthood President Bryan Howard said he did not know whether his organization would seek another way to block those rules. But he said the regulations, if implemented, will result in delays for women because there are not enough qualified doctors willing to perform abortions.
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And Planned Parenthood attorney Eve Gartner said the longer the wait to terminate a pregnancy, the greater the risk to the patient.
The legal fight is an extension of a lawsuit that Planned Parenthood filed last year after the Legislature voted to prohibit anyone other than a doctor from performing abortions.
Daughton enjoined the state from enforcing that law, ruling that challengers were likely to prevail once the case goes to trial. That trial, though, remains on hold while his injunction is being argued to the Court of Appeals.
The new rules at issue say doctors must be the ones to do everything from determining the gestational age of the fetus to remaining on the premises until all patients undergoing any kind of surgical abortion are stable and ready to leave.
At a hearing Wednesday, Gartner told Daughton those rules amount to an end run by the state around his 2009 order.
She said the shortage of qualified doctors remains. Gartner said requiring a doctor to perform the pre- and post-abortion procedures would have the same net effect as requiring a doctor to do the abortion itself: a delay in care for women.
Assistant Attorney General Carrie Brennan did not argue the merits of that claim. Instead, she told Daughton that Planned Parenthood waited too long to seek the relief.
"Planned Parenthood could have filed in May," when the final rules were published, she said. "And they didn't."
Cathy Herrod, president of the Center for Arizona Policy, which encouraged lawmakers to enact the restrictions in the first place, said the real underlying issue is her organization's belief that anything involving abortion should be performed by a doctor.
"This is about women being given appropriate medical care when seeking an abortion," Herrod said. "Legally, the best medical care for a woman seeking an abortion is given by a licensed physician, not by anyone else."
Herrod, however, did not deny that her organization has been at the forefront of pushing for greater restrictions on abortion. And its official position is that the procedure should be outlawed entirely.
She also said Daughton got it wrong when he issued last year's injunction against the ban on nurse-performed abortions, which is why that ruling is being appealed.
State law allows nurse practitioners to perform "medical abortions" involving a patient being given the abortion-inducing drug known as RU-486.
But a 1999 law regulating abortions left unclear the question of who could perform a surgical abortion. That led to Planned Parenthood allowing certified nurse practitioners to perform early-term abortions in which a fetus is vacuumed out of the womb.
Last year the Legislature enacted a series of new abortion restrictions, one requiring that all surgical abortions be performed by a physician. Daughton's injunction blocks that from taking effect.
The state Board of Nursing ruled two years ago that vacuum abortions can be performed by properly trained certified nurse practitioners.
