PHOENIX — Organizations of doctors and nurses opposed to abortion are arguing to a federal judge that requiring Arizona women to be told the procedure is reversible is not “junk science” as foes contend.
In legal briefs filed in federal court here, attorney Mailee Smith acknowledged there have been no investigational studies on humans to show that large doses of a hormone can stop a medication abortion once it has started.
But Smith, representing the American Association of Pro-Life Obstetricians and Gynecologists and three other groups, cited a study on mice showing that administering progesterone after the first drug for a medication abortion resulted in 94 percent of the mice not aborting. And she said the federal Food and Drug Administration does not require an investigational study on the “off-label” use of progesterone.
All that, she told U.S. District Court Judge Steven Logan, undermines the claims of foes, including the American College of Obstetricians and Gynecologists, that a state law is “junk science” and that there is “no credible evidence” to support the idea that abortions, once started, can be reversed.
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“The reversal process is actually based on well-established medical science, is safe for women, and falls within the guidelines of the FDA,” Smith wrote. And she said that the U.S. Supreme Court has ruled that states have “wide discretion” in enacting abortion regulations when there is medical disagreement.
But David Brown, an attorney with the Center for Reproductive Rights, said the law undermines the First Amendment rights of doctors by telling them to lie to their patients.
The law is aimed at medication abortions, which can be done through the first nine weeks of pregnancy. It involves two separate drugs, mifepristone, commercially known as RU486, to kill the fetus, and misprostol, taken up to 72 hours later, to expel the fetus from the womb.
At legislative hearings earlier this year, Allan Sawyer, immediate past president of the group Smith represents, told lawmakers he helped a woman save her pregnancy by administering the hormone progesterone after the first drug was given but before the second. And Josh Kredit, legal counsel for the anti-abortion Center for Arizona Policy, which pushed the legislation, said the evidence the practice works is proven by more than 100 babies born following the procedure.
The law requires doctors and others to personally inform women at least 24 hours before the procedure that “it may be possible to reverse the effects of a medication abortion if the woman changes her mind but that time is of the essence.”
It had been set to take effect earlier this month, but attorneys for the state agreed not to enforce it until Logan gets to hear arguments in October.
Brown said there may be “a small handful of physicians standing outside the mainstream of the medical community.” But he said that does not give the state license to force all doctors to tell patients what he said most believe is a lie.
Smith, however, said that is overstating the effect of the law.
“The Arizona regulation is entirely informational and makes clear that the reversal process is only a ‘possibility,’” she wrote. And Smith said nothing in the law requires an abortion provider to actually participate in any reversal attempt.
Potentially more significant, Smith said if a doctor does not believe reversal will work “he is free to say so — just as he is free to disagree with any other informed consent provision already required by Arizona law.”
But, Brown countered, “The government is still literally putting words into physicians’ mouths.”
“There cannot be a law that forces a physician to mislead or lie to her patients and then say, ‘Everything I just told you is misleading and a lie,’” Brown said. “That both undermines the relationship of honesty and trust between the physician and the patient and violates physicians’ First Amendment right to say things that are not based in science and based in medical evidence.”
Smith, in her legal filing, told Logan there’s another reason to uphold the law.
“Some women do indeed come to regret their abortions, no matter how ‘certain’ they seemed to the provider during the informed-consent process,” she said. She said that is underscored by women who have had the progesterone treatment “and went on to have healthy pregnancies.”
