Arizona law firm files suit to stop medication abortions in U.S.

An Arizona-based law firm founded to defend what it says are Christian values is trying to block the most used method of abortion.

Attorneys for the Alliance Defending Freedom contend the “abortion pill’’ — technically, two separate medications used together — is medically unsafe. They charge that the U.S. Food and Drug Administration ignored that evidence when it approved its use in 2000, instead choosing “politics over science.’’

There was no immediate response from the FDA to the lawsuit. But the agency, in its postings, said it determined mifepristone, the main medication involved, “is safe and effective when used to terminate a pregnancy’’ in accordance with labeling instructions.

If the lawsuit is successful it will remove an important option for women here, said Brittany Fonteno, president of Planned Parenthood Arizona.

That is not all. The state Court of Appeals is weighing whether to allow Arizona to once again enforce its territorial-era law that bans virtually all abortions.

If that occurs, the only pregnancy-termination option for women in Arizona would be to find a way to get a doctor from another state to prescribe the drugs so they could manage their own abortions.

That would cease to be an option if the Alliance Defending Freedom lawsuit is successful, the FDA is forced to rescind its approval and the medications are no longer available nationwide.

The lawsuit, filed in Texas, is in the name of several medical groups opposed to abortion, including the Alliance for Hippocratic Medicine, the American Association of Pro-Life Obstetricians and Gynecologists, and the Christian Medical and Dental Association.

The lawsuit’s contentions

Erik Baptist, the lead attorney, said President Bill Clinton, on his second full day in office in 1992, directed his cabinet to legalize chemical abortion drugs in the United States. He said Clinton then pressured a French company to donate for free the U.S. patent rights for mifepristone to the Population Council, an organization that does biomedical research and has developed birth control methods.

The council then got the FDA’s approval for use on Sept. 28, 2000, just over a month before the closely contested presidential election, Baptist said.

“The only way the FDA could have approved chemical abortion drugs was to use its accelerated drug approval authority, necessitating the FDA to call pregnancy an ‘illness’ and argue that these dangerous drugs provide a ‘meaningful therapeutic benefit’ over existing treatments,’’ Baptist wrote.

“But pregnancy is not an illness, nor do chemical abortion drugs provide a therapeutic benefit over surgical abortion,’’ he said, calling the FDA’s assertions “transparently false.’’ Baptist said the agency in granting approval for use in abortions, “needed to disavow science and law’’ because it never studied the safety of the drugs under labeled conditions of use as required.

The FDA in 2016 expanded the permitted use of the drugs from the first seven weeks of pregnancy to 10 weeks, reducing the number of required office visits from three to one, and expanded who could prescribe the drugs beyond medical doctors, he said.

And last year, he said, under President Joe Biden, the FDA said it would stop enforcing its requirement that abortion providers provide in-person dispensing of mifepristone and instead would temporarily allow mail-order chemical abortions during the COVID-19 public health emergency. That was later made permanent.

“This decision not only harms women and girls who voluntarily undergo chemical abortions, but it also further helps sex traffickers and sexual abusers to force their victims into getting abortions while preventing the authorities from identifying these victims,’’ Baptist said.

Several states including Arizona have since approved laws that prohibit obtaining these drugs by mail regardless of the FDA policy.

But Cathi Herrod, president of the anti-abortion Center for Arizona Policy, which helped craft the state legislation, acknowledged to Capitol Media Services that blocking the drugs from being sent into Arizona from a pharmacy in another state, or another country, where abortion remains legal could be logistically difficult.

“Abortion pills are being mailed into this country from places like India, is my understanding,’’ Herrod said when the issue came up earlier this year after the U.S. Supreme Court overturned Roe v. Wade.

That 1973 ruling said women have a constitutional right to terminate a pregnancy prior to a fetus becoming viable, generally considered between 22 and 24 weeks. The court voided it this year, leaving it to each state to decide its policies and laws on terminating a pregnancy.

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The National Women’s Health Network has told women they can set up a “virtual mailbox’’ before making an appointment for an online telemedicine consultation and then have the companies that provide these mailbox services forward the items.

More than half of Arizona abortions

This lawsuit is about more than mifepristone, also known as RU-486, which is designed to terminate the pregnancy.

Medical studies have said that drug does not always work by itself.

So the FDA added a second drug to the regimen — misoprostal — to induce contractions to expel the fetus from the womb. Baptist wants the judge to order the FDA to withdraw it approval for that drug, too.

Removal of the drugs would affect more than half the abortions performed in Arizona.

In 2020 — the most recent year for which the state health department has data — there were 6,620 pregnancies terminated using nonsurgical procedures, virtually all of them with the two-drug regimen. By contrast, there were 6,550 surgical abortions.

“I think it would be terribly devastating if access to abortion were further eliminated by the abortion pill becoming unavailable,’’ Fonteno said.

“We know that at Planned Parenthood Arizona, and actually across the country, most patients prefer the abortion pill as their method of termination,’’ she said. “This is just another attempt to try to block access to essential health care.’’

Fonteno said surgical procedures are less likely to have complications. That is backed by research saying surgical abortions have less of a risk of an incomplete procedure.

“But both abortion by the pill and abortion by surgery are incredibly safe procedures done in an out-patient environment,’’ she said.

Less than 1% of people who sought a medication abortion had complications, according to a 2018 report published by the National Academies of Sciences, Engineering, and Medicine.

The alliance’s court cases

Alliance Defending Freedom, based in Scottsdale, defines itself as “the world’s largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family.’’

Founded in 1994, it has been involved in a number of Arizona cases, including getting the state Supreme Court to rule that a Phoenix anti-discrimination ordinance did not preclude two women from refusing to provide custom wedding invitations to a gay couple.

The organization also got the U.S. Supreme Court to rule in 2015 that it was illegal for Gilbert to have an ordinance with stricter requirements for churches posting temporary signs directing the public to services than for political or ideological signs.

Their attorneys also are representing Dr. Eric Hazelrigg, who is representing interests of unborn children in the case at the Arizona Court of Appeals.

He has taken the position that Arizona can enforce its law dating to 1864, which makes it a crime to perform an abortion except to save the life of the mother. Planned Parenthood, by contrast, wants the court to rule that a law passed this year by Arizona lawmakers, enacting a ban at 15 weeks, should be applied to medical professionals.

The appellate court is set to hear arguments in that case at the end of the month.