Why the Supreme Court Could Soon Review Regulations on Chemical Abortion

by Mailee Smith

The Ninth Circuit issued an opinion last week enjoining Arizona’s regulation of dangerous abortion-inducing drugs — an opinion that is inherently flawed and that directly contradicts U.S. Supreme Court precedent.  But most importantly, the decision sets up a “circuit spilt” regarding the constitutionality of chemical-abortion regulations with the Fifth and Sixth Circuits, which should increase the likelihood that the Supreme Court will soon weigh in on these life-saving regulations. The health risks of abortion for women may soon be center stage in the Court.

In Planned Parenthood v. Humble, the abortion giant is challenging Arizona’s requirement, based on model legislation from Americans United for Life (AUL), that such life-ending drugs (commonly referred to as RU-486) be administered only in the way approved by the Food and Drug Administration (FDA). 

In the legislation, the Arizona Legislature specifically adopted and enumerated a number of women’s-health interests in regulating these drugs. For example, the Legislature delineated some of the complications associated with abortion-inducing drugs and explained that the majority of RU-486-related deaths in the United States were from an atypical presentation of fatal (bacterial) infection — that has, to date, remained medically unexplained.

Overall, the regulation does not ban the use of such life-ending drugs; it merely advances the state’s interest in protecting women’s health by directing abortion providers to use the drugs as restricted by the FDA. A federal district court in Arizona initially declined to issue a preliminary injunction against enforcement of the law, meaning that the regulation could go to work protecting women while litigation over its constitutionality continued. Planned Parenthood appealed, and the Ninth Circuit reversed the lower court’s determination, preventing these health-and-safety standards from going into effect.

The decision released by the Ninth Circuit embodies what we have come to expect from that liberal court. It embraces weak arguments from Planned Parenthood and employs its own renegade analysis that is at odds with clear Supreme Court precedent.

Take, for example, what the Ninth Circuit panel refers to as the “uncontroverted evidence” submitted by Planned Parenthood which, allegedly, causes the court to reject the state’s concerns for women’s health and safety: 1) women who choose drug-induced or chemical abortion “strongly prefer it over surgical abortion”; and 2) some women have medical conditions that make chemical abortion “significantly safer” than surgical abortion. 

“Strongly prefer it”?  In Planned Parenthood v. DeWine, an earlier challenge to a similar regulation in Ohio, the Sixth Circuit rejected such claims by Planned Parenthood, rightfully concluding that “the Supreme Court has not articulated any rule that would suggest that the right to choose abortion encompasses the right to choose a particular [i.e., “preferred”] abortion method.”

Just this past March, in Planned Parenthood v. Abbott, a challenge to Texas’s 2013 regulation of abortion-inducing drugs, an all-female panel of the Fifth Circuit rejected Planned Parenthood’s claim that chemical abortion is necessary or safer for some women who allegedly should not undergo surgical abortion — noting that the abortion giant provided no real evidence for that claim. 

In other words, the Ninth Circuit accepts as “evidence” mere hypothetical claims that have been rejected by the Fifth and Sixth Circuits and are not supported by Supreme Court precedent.

The great lengths taken by the Ninth Circuit to ignore basic matters of law is also staggering. The court attempts to distinguish the issues before it from the issues examined by the Supreme Court in Planned Parenthood v. Casey and Gonzales v. Carhart by claiming that those Supreme Court cases only involved states’ interests in as-yet unborn fetal life, while the Arizona law is based on the state’s interest in protecting women’s health. This attempted distinction is misguided as both Casey and Gonzales involved state interests related to maternal health, and both cases affirmed the “essential holding” in Roe v. Wade that “the State has legitimate interests from the outset of pregnancy in protecting the health of the woman.”

In fact, the Ninth Circuit contradicts itself in its own opinion by subsequently noting that the “undue burden claim in Gonzales was based solely on the [federal partial-birth abortion ban’s] failure to allow [partial-birth abortion] when required to protect a woman’s health.

By errantly attempting to distinguish Casey and Gonzales, the Ninth Circuit also embraces the necessity to ignore other crucial aspects of those decisions. 

Currently, states have a certain leeway in protecting women’s health. Instead of adopting the Supreme Court’s determination that medical disagreement over the effect of an abortion regulation coupled with commonly used alternative procedures means that the state must be given wide discretion to protect women, the Ninth Circuit instead employs its own manufactured and incorrect standard of review.  Apparently, the Supreme Court is not informed enough for the Ninth Circuit.

The Ninth Circuit points to its own earlier decision in Tucson Woman’s Clinic v. Eden for the incorrect proposition that abortion regulations based solely on maternal-health interests are to be treated differently than the laws evaluated in Casey and Gonzales

Ignoring Supreme Court precedent, the Ninth Circuit claims that the following factors should be utilized in weighing whether the state’s interest in protecting women’s health outweighs the burden an abortion regulation places on women: 1) increase in cost; 2) delays (“extra visits”); 3) hindering the abortion provider’s “medical judgment”; and 4) socioeconomic factors.

The Ninth Circuit’s creation is completely at odds with Supreme Court precedent.  In Casey, the Court rejected claims that incidental increases in cost, delay, or extra office visits interfere with the “right” to abortion.  In Gonzales, the Court took great strides to affirm the state’s “significant role to play in regulating the medical profession” and that “abortion doctors” are “not entitled to ignore regulations that direct them to use reasonable alternative procedures.” 

What the Ninth Circuit chooses to ignore — and not examine in its decision — is also telling. 

For example, the court never addresses the fact that surgical abortion is a safer alternative to chemical abortion.  Of course, such an acknowledgment would undermine the court’s clear determination to find the Arizona regulation burdensome. 

Cherry-picking through the amicus briefs submitted, the Ninth Circuit relies on the American College of Obstetricians and Gynecologists while completely ignoring evidence that counters them in a brief submitted by the Arizona legislators (and drafted by AUL) that provides a wealth of data refuting all of the court’s false assumptions about abortion-inducing drugs.

A silver lining exists in the Ninth Circuit’s opinion, replete though it be with legal and evidentiary errors. With a “circuit split” in the works, it’s more likely that the Supreme Court will be called upon to determine the constitutionality of state regulations of dangerous life-ending drugs. The health-risks of abortion for women will not be ignored forever.

— Mailee Smith is a staff attorney at Americans United for Life, overseeing creation of amicus briefs including one in this case.