Federal Courts Deal One-Two Punch to Planned Parenthood in Chemical-Abortion Cases

by Mailee R. Smith

Just days after the Fifth Circuit dealt a devastating blow to Planned Parenthood by upholding a Texas chemical-abortion regulation, a federal court in Arizona refused to enjoin a similar regulation in Arizona. The decision allows the Arizona regulation to go into effect today, meaning that Arizona can immediately protect women and rein in misuses of abortion-inducing drugs by the abortion industry. 

Enacted in 2012 and based on AUL model legislation, the Arizona regulation mandates that abortion-inducing drugs be administered in compliance with the protocol authorized by the Food & Drug Administration as outlined in the drug label (or “final printed labeling”) for the drug. 

As such, it thwarts abortion current practices with the drug — such as administering them after the 49-day gestational period approved by the FDA and sending women home to self-administer alone and without medical supervision. Significantly, eight women have died of bacterial infection following unapproved use of RU-486.

Seeking to continue misuse of these dangerous drugs, Planned Parenthood filed suit in federal court in Arizona in March.

The Arizona district court drew heavily from the Fifth Circuit’s recent decision as well as from a 2012 Sixth Circuit opinion holding in Planned Parenthood Southwest Ohio v. DeWine that a similar Ohio law does not pose an undue burden on women seeking abortion.

The court noted that, on its face, the law reflects the legitimate purpose of protecting women from dangerous and potentially deadly off-label use of abortion-inducing drugs and ensuring that physicians abide by the protocol approved by the FDA. “In other words, the primary, if not the sole, purpose of the statute is maternal health.”

In addition to citing that alternatives to chemical abortion are available to women in Arizona, the court specifically cited AUL-drafted findings included in the regulation noting the risks associated with chemical abortion. Rejecting the abortion providers’ claims that the legislature somehow banned — rather than regulated — chemical abortion through the regulation (a typical frivolous claim in lawsuits challenging chemical-abortion regulations), the court cited a finding drafted by AUL which makes clear that the legislature intended to regulate (and not ban) chemical abortion.

In all, the court concluded that the state’s actions were rationally related to its desire to protect maternal health and that other common methods of abortion are available to women even if the regulation precludes them from choosing chemical abortion — meaning that the abortion providers are not likely to prevail in the case.

While the decision represents a preliminary step in this particular case — the court’s decision allows the regulation to go into effect while the litigation continues — it may in effect be a large stepping stone for ultimate Supreme Court review of chemical-abortion regulations.

If the case is appealed to the Ninth Circuit and upheld, it would be a tremendous win for states seeking to regulate chemical abortion. If, on the other hand, the case is appealed and the Ninth Circuit invalidates the regulation, it would create a “circuit split.”

In the meantime, women in Arizona are protected from Planned Parenthood’s “drive-thru” business model of handing out drugs and sending women on their way — a misuse of drugs and power that clearly demonstrates that the abortion giant’s priority is money, not women’s health.

— Mailee Smith is an attorney with Americans United for Life.