Maricopa judge blocks law limiting abortion pill use

PHOENIX — A 2012 state law limiting when doctors can use a certain drug for abortions is unconstitutional, a judge ruled Thursday.

Maricopa County Superior Court Judge Richard Gama said it was illegal for legislators to say that mifepristone, which induces abortions, can be used only according to a label approved by the federal Food and Drug Administration. He said that violated a provision of the Arizona Constitution that forbids lawmakers from delegating their authority to an outside group.

The ruling means doctors can continue to use the drug, better known as RU-486, according to what they believe is the best practice. And that is for two weeks longer than the current FDA standard.

“It’s a big victory for Arizona women, for their right to choose,” said attorney David Brown with the Center for Reproductive Rights.

“Unfortunately, the Arizona Legislature has a pattern of ignoring the constitution when passing anti-abortion laws,” he said. “So we’re always pleased to remind them that they have to respect the constitution and respect women’s constitutional rights.”

The legal problem with the law, said Gama, is that it’s not fixed in stone.

Gama noted that the FDA currently says the drug can be used through the first seven weeks of pregnancy.

But the judge also said the FDA is free to change that standard at any time. More to the point, Gama said any change in FDA standards would automatically change state law.

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All that, he said, makes the law an unconstitutional delegation of the Legislature’s powers.

A spokeswoman for the Attorney General’s Office said her agency is reviewing Gama’s decision before deciding whether to appeal. There also was no comment from Cathi Herrod, president of the anti-abortion Center for Arizona Policy, which helped push the measure through the Legislature.

Thursday’s ruling has no immediate impact on the practice of abortion.

A federal court hearing a parallel challenge to the 2012 law enjoined its enforcement while that case makes its way through the system. And the U.S. Supreme Court refused to disturb that injunction.

Both lawsuits were filed on behalf of Planned Parenthood and Dr. William Richardson, who operates the Tucson Women’s Center. The doctors at both use RU-486 into the ninth week in connection with a second drug that a woman takes at home 72 hours later to expel the fetus.

Challengers said that prohibiting the use of the drug after seven weeks would mean that a woman beyond that would have to undergo a more complicated and expensive surgical procedure.

But the law also would affect women who are seeking an abortion within the first seven weeks of pregnancy.

Aside from limiting use to seven weeks, the FDA-approved procedure requires a higher dosage of RU-486 administered in two dosages, by a doctor, within 48 hours. That second dose adds about $90 to the cost for women, not counting cost and time of the required second visit a woman would have to make to a clinic to have that second pill administered by a doctor, versus being able to take it at home.