Ninth Circuit Hears Arguments in Arizona Medication Abortion Ban Lawsuit

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Ninth Circuit Hears Arguments in Arizona Medication Abortion Ban Lawsuit

Jessica Mason Pieklo

An emergency order prevented the requirements from taking effect in April, which would have required providers to strictly follow FDA protocol when administering abortion-inducing medications.

On Tuesday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit will hear arguments on the legality of an Arizona law that limits the use of abortion-inducting medications and, according to advocates, threatens to end altogether the availability of medication abortion in the state.

At issue in the lawsuit are regulations that require abortion providers to follow outdated Food and Drug Administration (FDA) protocol when administering medication abortions. According to the complaint, the regulations are too vague and unconstitutionally target medication abortion in such a way that they would either ban the method outright or only allow doctors to offer the procedure with an inferior, outdated, and less effective protocol. In March 2013, reproductive rights advocates 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.

Arizona’s medication abortion restrictions are similar to those passed in states like Texas that have also sought to severely restrict, if not ban altogether, the practice, despite concerns raised by the medical community that such laws hurt patients. Last year, the American Medical Association and the American Congress of Obstetricians and Gynecologists came out against the efforts in Texas and elsewhere to dictate medical practice by forcing physicians who prescribe medication abortions to follow FDA protocol. Here, too, the two medical associations filed a joint amicus curiae brief in support of the reproductive rights advocates challenging the regulations, which explains that there is no evidence FDA protocol restrictions promote patient health and safety. Instead, the groups argue, the law jeopardizes women’s health by “requiring that physicians deny women the benefit of the most current, well-researched, safe, evidence-based and proven protocols for the provision of medical abortion, and, instead, prescribe a regime that is less safe.” The result, the doctors argue, is a legislative mandate that is against the best interests of patients and forces doctors to “depart from their ethical obligation to provide the best possible care for their patients using their sound medical judgment—insisting, rather, that physicians substitute the judgment of the Arizona legislature for their own.”

But despite opposition from the medical community, federal and state courts have split on blocking restrictions like the one before the Ninth Circuit. Most recently, the U.S. Court of Appeals for the Fifth Circuit upheld restrictions in Texas, while another federal court did the same for Ohio. However, the Oklahoma Supreme Court struck down the state’s medication abortion restriction, a decision the U.S. Supreme Court declined to overrule, while a state court in North Dakota blocked a similar law there.

Roe is gone. The chaos is just beginning.

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A ruling from the Ninth Circuit on the Arizona restrictions could take several months. Meanwhile, a second lawsuit challenging those restrictions is pending in state court. That lawsuit was filed before the Ninth Circuit had issued a ruling on the federal action, but advocates note that the two cases are not dependent on one another and instead provide different grounds for legal relief from the law. The state court action argues that because the regulation of doctors is a matter of state concern, the Arizona legislature violated state law by unlawfully delegating to the FDA a matter of state concern. The complaint also claims that Arizona lawmakers violated their own rule-making procedures when passing the regulations, because they failed to provide for enough time for the public to comment, as required under law.

The hearing before the Ninth Circuit is scheduled to begin at 9:00 a.m. this Tuesday in San Francisco.