9th Circuit Enjoins Abortion Drug Law

(CN) - Arizona's ban against drug-induced abortions after seven weeks likely imposes an illegal burden on women in the state, especially those from low-income and rural areas, the 9th Circuit ruled Tuesday.

The federal appeals court granted Planned Parenthood of Arizona and others a preliminary injunction against HR 2036, a state law that bans the off-label use of the drug Mifepristone.

The widespread off-label use of the drug prior to the 2012 ban had allowed abortion providers to use medications to terminate pregnancies after nine weeks, instead of the seven weeks approved by the Food and Drug Administration in 2000.

The law also requires that a second dose of the drug misoprostal must be taken at a clinic instead of the usual practice of patients taking it at home.

Just before the law took effect in April, Planned Parenthood of Arizona moved for a preliminary injunction in Tucson District Court. The group argued that off-label use of mifepristone has for years been recognized by experts as preferable to its initial on-label use, not least because many women do not discover a pregnancy until about the end of their seventh week.

Finding that the state had provided a rational basis for the law, U.S. District Judge David Bury refused to enjoin it, even while finding the off-label procedure clearly superior to the alternatives.

The 9th Circuit put the law on hold pending appeal, and a unanimous appellate panel reversed on Tuesday.

The three-judge panel cited strong evidence that the ban will impose an "undue burden" on women seeking abortions in Arizona, where 43 percent of abortions performed during the first nine weeks of pregnancy use the off-label, or "evidence based", regime.

Planned Parenthood introduced evidence that the off-label procedure is safer than the alternatives, and that the vast majority of women prefer it to a more invasive surgical abortion. This belies the state's reasoning that the law is meant protect women's health, the panel found.

"On the record before us, Arizona has presented no evidence whatsoever that the law furthers any interest in women's health," wrote Judge William Fletcher for the panel. "For example, the Arizona legislature cited the dangerousness of mifepristone in support of requiring the on-label regimen, but the on-label regimen requires three times more mifepristone than the evidence-based regimen. As the district court found, the FDA not only expects off-label use but encourages it as part of the effective practice of medicine."

Moreover, the plaintiffs showed that under the law the sole abortion provider in the state's rural northern regions may have to close, as it provides only medication abortions. The next closest provider is some 160 miles away in the Phoenix area.

Planned Parenthood argued that the ban would likely end up costing women at least $200 more than other methods. As some 40 percent of Planned Parenthood Arizona's patients are "poor," this could prevent some women from undergoing the procedure, the plaintiffs said.

The panel also noted a recent study in Washington that found that rural women who had to travel more than 75 miles to obtain an abortion "were two to three times more likely than women travelling less than 75 miles to terminate after 12 weeks," leaving them no choice but to undergo the more invasive surgical procedure.

"Plaintiffs have introduced uncontroverted evidence that the Arizona law substantially burdens women's access to abortion services, and Arizona has introduced no evidence that the law advances in any way its interest in women's health," Fletcher wrote. "We hold that plaintiffs have shown a likelihood of success on their claim that the Arizona law imposes an undue burden on a woman's right to abortion."

The panel remanded the case to Tucson with instructions for the District Court to issue a preliminary injunction.

Nancy Northup, president and CEO of the Center for Reproductive Rights, praised the ruling in a statement.

"The message in today's decision is clear: Politicians need to stop playing doctor, leave the practice of medicine to trained health care professionals, and stop meddling in women's personal decisions about their health and families," she said.

"This law was never more than another back-door attempt to restrict women's constitutional right to decide for themselves whether to end a pregnancy, and to cut off access to health care options recommended by the doctors women trust and rely on."

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