The U.S. Court of Appeals for the Ninth Circuit ruled Tuesday the justifications for Arizona’s regulations limiting medication abortions were “non-existent,” and ordered the law blocked and returned to the lower court for a trial on the constitutionality of the restrictions.
The unanimous decision came less than a month after oral arguments were heard in San Francisco over whether or not the regulations should have been blocked while a trial on its the constitutionality proceeds. The regulations, which were issued by the state Department of Health Services on January 27, under the authority of a law signed by Gov. Jan Brewer in April 2012, restrict the use of medication abortions by requiring providers to follow outdated Food and Drug Administration (FDA) protocol. Advocates argue that, if enacted, the law could end altogether the availability of medication abortions in the state.
Shortly after the regulations were issued, the Center for Reproductive Rights and the Planned Parenthood Federation of America sued to block the new restrictions, but a lower court refused their request and ruled the restrictions could go into effect. Advocates immediately filed an appeal with the Ninth Circuit, which issued a temporary emergency injunction, blocking the lower court order and preventing the regulations from being implemented pending the appeal.
“We are pleased that the Ninth Circuit decided to protect the health and civil rights of Arizona women while this case proceeds to trial and emphasized that the state didn’t provide any evidence to back up their claims,” David Brown, attorney for the Center for Reproductive Rights, told RH Reality Check in an interview following the decision.
The court noted several ways in which attorneys for the state failed to show the regulations have any connection to furthering patient health:
On the record before us, Arizona has presented no evidence whatsoever that the law furthers any interest in women’s health. … For example, the Arizona legislature cited the dangerousness of mifepristone in support of requiring the on-label regime, but the on-label regime requires three times more mifepristone than the evidence-based regime. … Arizona argues that the law prohibits not just safe evidence-based regimes for medication but also other, dangerous off-label regimens. But the record contains no evidence that any such dangerous regimen exists or has ever been used by any abortion provider. Therefore, on the current record, the Arizona law appears wholly “unnecessary as a matter of [women's] health.”
The court also found the law is likely to impose an undue burden on women because it would deny some women the ability to have an abortion, force others to have a surgical procedure instead of a medication abortion, and force women in some parts of the state to make four visits, traveling anywhere between 300 miles to 700 miles each trip, to access a safe and legal medication abortion.
“Evidence in the record shows that women in Arizona will be burdened with a significant increase in the cost of medication, and that many women will be delayed in, or deterred from, seeking an abortion if the evidence-based regimen is foreclosed to them. The availability of on-label medication abortions during the first seven weeks of pregnancy, and of surgical abortions thereafter, does not preclude a finding of undue burden,” the court wrote.
“This decision is a victory for women’s health. This decision assures that Arizona women can access safe, legal abortion following the best, safest medical guidelines while our case challenging this dangerous and misguided law continues,” said Cecile Richards, president of the Planned Parenthood Federation of America, in a statement following the opinion.
In addition to the federal court action challenging Arizona’s medication abortion restrictions, the Center for Reproductive Rights (CRR) also filed a lawsuit in Arizona state court challenging the medication abortion restrictions under state law. According to Brown, the state court lawsuit focuses specifically on Arizona law and claims lawmakers violated the Arizona Constitution by unlawfully delegating their power to regulate mifepristone to the FDA and drug manufacturers. So far, attorneys for the State of Arizona have not responded to the merits of CRR’s state court claim but have instead asked a judge to stay the proceedings while the federal court case works toward resolution. Brown and CRR oppose that request, noting the federal case could take years to resolve and that the state claims could resolve the dispute entirely without having to reach any of the federal constitutional issues.
A trial date in the federal case has not yet been set, and attorneys for the state have the option of asking the Supreme Court to intervene. Meanwhile, the parties are awaiting a ruling on Arizona’s request to postpone the state court proceeding. Additionally, CRR has filed a motion for summary judgment asking the state court to rule on the merits of its claims. Attorneys for the State of Arizona have not yet responded to the summary judgment request.