PHOENIX — Calling the measure unjustified and likely illegal, a federal appeals court Tuesday blocked the state from telling doctors how they can and cannot use certain drugs for abortions.
In a unanimous decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the limits lawmakers put on RU-486 and another drug “substantially burdened” the legal right of women to terminate a pregnancy. Potentially more significant, the judges said attorneys for the state never provided any evidence to show the restrictions were necessary to protect the health of women.
In fact, Judge William Fletcher, writing for the court, said the evidence they have suggests just the opposite: Women were more likely to suffer complications if doctors had to follow the law.
Tuesday’s ruling is at least an interim victory for Planned Parenthood and the Tucson Women’s Center.
The law has been on temporary hold since it was set to take effect in April. Tuesday’s ruling enjoins it from being enforced while its legality is litigated, a process that could take months or longer.
In issuing Tuesday’s order for a preliminary injunction, however, the judges concluded the law likely will be found illegal after a full-blown trial.
But Josh Kredit, attorney for the anti-abortion Center for Arizona Policy, which helped craft the law, said he believes the ruling ultimately will be overturned. He said federal appellate courts in two other jurisdictions reached contrary conclusions.
Kredit said these disparate rulings likely will force the U.S. Supreme Court to wade into the fight.
At the heart of the case is the fact that both Planned Parenthood and the Tucson Women’s Center have used RU-486, which is an abortion drug technically known as mifepristone, as well as misoprostol, a drug taken at home 24 to 48 hours after intercourse, to ensure that the fetus is expelled.
Attorneys for both organizations said their doctors have determined that combination in certain dosages is effective in terminating a pregnancy through the ninth week. But a 2012 state law says any medication used to induce abortion must be administered “in compliance with the protocol authorized by the U.S. Food and Drug Administration.” The FDA has approved RU-486 only for the first seven weeks, and only when given in two doses on separate days, each one administered by a physician.
Fletcher said there was no basis for the restriction.
He pointed out the FDA not only encourages “off-label” use of drugs by doctors — sometimes known as “evidence-based” use — “but encourages it as a part of the effective practice of medicine.”
Federal courts have allowed some restrictions on abortions. But they generally have been based on some finding that the limits are necessary to protect the health of women.
Kredit said the legislators who voted for the measure made their own medical findings that the FDA-approved use, both in terms of dosage and limited to seven weeks, was the safest way to go for women. And he pointed out the FDA approved RU-486 under special rules for dangerous drugs that limited its marketing and distribution.
But Fletcher said those rules do not limit the use of the drug. More to the point, the judge said the state’s argument that the FDA protocol actually is safer for women does not hold up under closer examination.
“The on-label regimen requires three times more mifepristone than the evidence-based regimen,” the judge said. And he said there was nothing presented to the court showing that any doctor was using the drug in a dangerous manner.
“Therefore, on the current record, the Arizona law appears wholly unnecessary as a matter of women’s health,” Fletcher wrote.
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