Drug-Induced Abortion Limits Fought in the 9th

SAN FRANCISCO (CN) - Arizona's laws on drug-induced abortions create obstacles that amount to an outright ban on abortions for many women in the state, Planned Parenthood Arizona told the 9th Circuit.

"The burdens are multiple," Planned Parenthood attorney Alice Clapman said at a hearing Tuesday.

There are women "who need medication abortion for health reasons because of physical conditions, for mental health reasons because of past trauma, or for safety reasons because they are domestic violence victims who need to conceal an abortion," Clapman added.

Indeed drug-induced abortions are the only service that the sole provider in northern Arizona performs, Clapman said. Thus women in that part of the state who seek an abortion after the seventh week would have to drive hundreds of additional miles for a surgical abortion, which could be more dangerous than a drug-induced abortion for some women.

The Arizona Legislature passed HR 2036 in 2012, banning the off-label use of the pregnancy-ending drug mifepristone. The Food and Drug Administration approves the use of mifepristone up until the seventh week of pregnancy. Providers who make off-label use of the drug use it to terminate pregnancies until the nine-week mark.

HR 2036 also requires that the second drug in drug-induced abortions, misoprostal, which causes uterine contractions, be taken at a clinic instead of the usual practice of patients taking it at home.

A three-judge panel of the 9th Circuit is tasked with considering whether U.S. District Judge David Bury properly denied opponents of HR 2036 injunctive relief. Though the Phoenix federal judge had found that the law's new limits would likely increase abortion costs and maybe limit access for women in sparsely populated northern regions, he nevertheless said the state had shown a rational basis for its regulation.

A stay that the federal appeals court granted just over a month ago stopped the new law from going into effect.

Deputy Attorney General Robert Ellman told the federal appeals court that female residents of Arizona have the "ultimate right to decide to terminate a pre-viability pregnancy, not the right to choose the method by which (they) do so."

The U.S. Supreme Court had decided that women do not face a substantial burden if another viable abortion method is available, Ellman added.

Circuit Judge Susan Graber wanted Arizona attorney Ellman to explain how HR 2036 was not just a pretext for banning drug-induced abortions.

Ellman pointed to a plain reading of the law and the legislators' intent, along with Judge Bury's order. "The primary purpose of this legislation is maternal health," Ellman said.

Data shows that the off-label use of mifepristone and the unsupervised use of misoprostal are dangerous, the lawyer added.

Both Graber and Circuit Judge William Fletcher questioned his statistics, but Ellman said the case is not about "whether the appellants' preferred protocol is better or even safer than the FDA-approved protocol."

He said the law should go into effect because women in Arizona will still have access to abortions and that the law has a rational basis.

Planned Parenthood attorney Clapman argued in a brief and in person Tuesday that limiting the availability of drug-induced abortions placed undue burdens on Arizona women. Off-label use of mifepristone is common and recognized by experts as "preferable to the regimen that appears on the mifepristone label," Clapman said.

For women between seven and nine weeks of pregnancy, the law would act to ban drug-induced abortion entirely, even though many women do not discover a pregnancy until about 49 days in, at the end of the seventh week, Clapman said.

She also said that following the printed protocol requires the use of too much mifepristone.

In a joint friend-of-the-court brief, the American College of Obstetricians and Gynecologists and the American Medical Association said "the Arizona law confers significant risk and no benefit to women's health. Put simply, the law is bad medicine."

While District Judge Bury may not have been swayed at this early, pre-evidence phase by the undue-burden claim, Clapman said he should have allowed drug-induced abortions for women with health risks.

Bury should enjoin enforcement of the law if a provider determines that a medication abortion is best for a patient's health, or the 9th Circuit could extend its stay and remand the case back to Bury with a new legal framework, Clapman said.

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