U.S. Supreme Court declines review of Arizona abortion case

The “forced birth” religious zealots of the Arizona legislature and Cathi Herrod’s Center for Arizona Policy (CAP), the author of the RU-486 abortion bill, lost another round in the U.S. Supreme Court today after having lost in the 9th Circuit Court of Appeals.

Lyle Denniston at SCOTUSblog reports, Court passes up RU-486 abortion issue, again:

The Supreme Court chose again today to bypass a dispute over state authority to strictly limit the access of pregnant women to abortion procedures that use drugs instead of surgery.  This time, the Court declined to review a case from Arizona — a state where nearly half of all abortions have been performed without surgery (Humble v. Planned Parenthood Arizona).  Last Term the Court dismissed a similar case that was an appeal from Oklahoma.

Across the country, an increasing number of women seeking to end their pregnancies are opting for a two-drug protocol, which is less expensive and less invasive than surgery and, under the most common practice, requires only one visit to a doctor or clinic to take one of the drugs under supervision; in addition, the protocol can be used later in pregnancy.  The first drug is mifepristone (popularly known as RU-486), which ends the pregnancy by causing the fertilized egg to detach from the uterine wall.  The second drug, misoprostol, causes the uterus to expel its contents.

As that method has grown in popularity, several state legislatures that seek to curb abortions generally have passed laws limiting the protocol that may be used for medically inducing an abortion.  It limits the use of the drugs to the method that has been specifically approved by the federal Food and Drug Administration.  But supporters of women’s abortion rights say that this approach has the practical effect of forbidding all medical abortions, because the FDA has not approved the use of the second drug — misoprostol — for ending pregnancy.  It is not uncommon, in medical practice, for doctors to use drugs in ways not specifically endorsed by the FDA — known as the so-called “off-label” uses.

In June 2013, the Supreme Court had initially voted to review an Oklahoma law curbing RU-486 abortions, but it later wound up dismissing that case after the Oklahoma Supreme Court — asked by the Court for its views — explained that the law was so broad that it banned virtually all medical abortions.

In the new appeal by Arizona officials, they sought to steer the Court await from the validity of the medical abortion method, focusing instead on the constitutional test that courts should use to judge the constitutionality of abortion laws in general.  The state’s petition argued that the U.S. Court of Appeals for the Ninth Circuit has adopted a new standard of review for abortion restrictions that conflicts with the approaches taken by two other federal appeals courts.

The challengers to the Arizona law argued that the Supreme Court should not step in now to review the Arizona case, because the Ninth Circuit’s ruling was not a final one, and more processes will be unfolding in a federal trial court in Arizona.

The Court declined review without giving any reasons, and there were no noted dissents from that order by any Justice.

Howard Fischer adds, Abortion law blocked after US Supreme Court refuses to act:

Today’s action is a victory for Planned Parenthood and the Tucson Women’s Clinic, both of which had challenged a 2012 law limiting the use of RU-486 to terminate a pregnancy. The 9th U.S. Circuit Court of Appeals blocked its enforcement after concluding the burden placed on women outweighs the state’s justification for the law.

But it may not be the last word.

That is because federal appellate courts have upheld similar restrictions adopted by lawmakers in Texas and Ohio. In those cases, the judges said they will block such restrictions only when they erect a “substantial obstacle” to women obtaining an abortion.

Those other rulings ultimately could force the justices to decide which legal approach is correct.

The 2012 law deals with RU-486, technically known as mifepristone, for medication abortions. It is given in combination with misoprostol, which is taken at home 24 to 48 hours later to ensure that the fetus is expelled. Doctors said they have determined that combination in certain doses is effective in terminating a pregnancy through the ninth week.
The law, however, says any medication used to induce abortion must be administered “in compliance with the protocol authorized by the U.S. Food and Drug Administration.” And the company’s FDA-approved labeling for the drug says RU-486 can be used only for the first seven weeks – and only when given in two doses on separate days, each one administered by a physician.

A federal judge refused to block its enforcement.

But the 9th U.S. Circuit Court of Appeals said earlier this year the limits “substantially burdened” the legal right of women to terminate a pregnancy. The judges said there was evidence that the law would make medication abortions off-limits to hundreds of Arizona women a year – particularly those who do not discover they are pregnant until after the seventh week – forcing them instead to undergo more complicated surgical abortions.

The appellate judges said there were other burdens, including the cost of the extra dose of RU-486 required under FDA protocols as well as the requirement for a second visit to a clinic.

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.

Fischer is right, the Court will eventually have to resolve the conflict among the circuit courts of appeal, but today the Court decided that it is not ready to intervene in abortion cases for the time being.