New bill changes provisions in medical abortion law

PHOENIX — Abortion foes at the Legislature are trying an end run around a state judge who last year declared some limits on medication abortions enacted by lawmakers illegal.

But other legal hurdles to the restriction remain.

The proposed new version of the law, like its voided predecessor, seeks to block medication abortions after the seventh week of pregnancy, forcing women who want to terminate a pregnancy after that point to undergo a more expensive and medically intrusive surgical procedure.

That flies in the face of the current practice of using RU-486 — the abortion pill — through the ninth week.

But there’s an important change.

The original 2012 law said Arizona doctors had to follow the label directions for the drug approved by the U.S. Food and Drug Administration. For the moment, that has the seven-week limit.

But last year Maricopa County Superior Court Judge Richard Gama voided that law as an unconstitutional delegation of the Legislature’s authority. He said that’s because the FDA could change that standard at any time, effectively giving the federal agency the ability to change state law.

By contrast, this new version in SB 1324 sponsored by Sen. Kimberly Yee, R-Phoenix, says doctors must follow the FDA label as it existed at the end of last year, even if the agency changes its mind in the future.

David Brown, attorney for the Center for Reproductive Rights, said Wednesday that could resolve the state court issue. But he said even if that is approved and signed by Gov. Doug Ducey, an abortion foe, that does not end the legal problems with the restriction.

Brown pointed out the 9th U.S. Circuit Court of Appeals issued its own order enjoining enforcement of the law on entirely separate grounds, a decision the U.S. Supreme Court refused to disturb. Brown said he expects that injunction to become permanent after a full-blown trial.

But Josh Kredit, attorney for the anti-abortion Center for Arizona Policy, which helped get the law enacted in 2012, said it would be wrong to make that presumption. He pointed out that a federal judge in Tucson had refused to block enforcement of the law.

Kredit acknowledged the 9th Circuit disagreed.

But he said two other federal appellate courts have upheld similar laws in other states. And Kredit said he presumes the Supreme Court ultimately will side with abortion foes.

At the heart of the case is the fact that both Planned Parenthood and the Tucson Women’s Center have used RU-486, 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 that 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.

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Both organizations sued to have the law declared illegal.

While the federal judge said he found nothing improper about the law, the 9th Circuit concluded otherwise.

In a unanimous decision, the court said the limits “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 evidence suggests just the opposite: Women were more likely to suffer complications if doctors had to follow the law.

And in enjoining enforcement, the judges concluded the law likely will be found illegal after a trial.

In his ruling for the three-judge panel, Fletcher said there was no medical 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 Wednesday the Arizona law fits that requirement.

“Arizona can’t tolerate the abortion industry putting profits above the health and safety of women,” he said. “What they’re doing is they’re cutting their cost by using less dosage.”

And Kredit said limiting use of the drug to what the FDA says manufacturers can put on the label protects the health of women.

But Fletcher, in the court’s opinion, 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.