News Law and Policy

Ninth Circuit Hears Arguments in Arizona Medication Abortion Ban Lawsuit

Jessica Mason Pieklo

An emergency order prevented the requirements from taking effect in April, which would have required providers to strictly follow FDA protocol when administering abortion-inducing medications.

On Tuesday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit will hear arguments on the legality of an Arizona law that limits the use of abortion-inducting medications and, according to advocates, threatens to end altogether the availability of medication abortion in the state.

At issue in the lawsuit are regulations that require abortion providers to follow outdated Food and Drug Administration (FDA) protocol when administering medication abortions. According to the complaint, the regulations are too vague and unconstitutionally target medication abortion in such a way that they would either ban the method outright or only allow doctors to offer the procedure with an inferior, outdated, and less effective protocol. In March 2013, reproductive rights advocates sued to block the new restrictions, but a lower court refused their request and ruled the restrictions could go into effect. Advocates immediately filed an appeal with the Ninth Circuit, which issued a temporary emergency injunction, blocking the lower court order and preventing the regulations from being implemented pending the appeal.

Arizona’s medication abortion restrictions are similar to those passed in states like Texas that have also sought to severely restrict, if not ban altogether, the practice, despite concerns raised by the medical community that such laws hurt patients. Last year, the American Medical Association and the American Congress of Obstetricians and Gynecologists came out against the efforts in Texas and elsewhere to dictate medical practice by forcing physicians who prescribe medication abortions to follow FDA protocol. Here, too, the two medical associations filed a joint amicus curiae brief in support of the reproductive rights advocates challenging the regulations, which explains that there is no evidence FDA protocol restrictions promote patient health and safety. Instead, the groups argue, the law jeopardizes women’s health by “requiring that physicians deny women the benefit of the most current, well-researched, safe, evidence-based and proven protocols for the provision of medical abortion, and, instead, prescribe a regime that is less safe.” The result, the doctors argue, is a legislative mandate that is against the best interests of patients and forces doctors to “depart from their ethical obligation to provide the best possible care for their patients using their sound medical judgment—insisting, rather, that physicians substitute the judgment of the Arizona legislature for their own.”

But despite opposition from the medical community, federal and state courts have split on blocking restrictions like the one before the Ninth Circuit. Most recently, the U.S. Court of Appeals for the Fifth Circuit upheld restrictions in Texas, while another federal court did the same for Ohio. However, the Oklahoma Supreme Court struck down the state’s medication abortion restriction, a decision the U.S. Supreme Court declined to overrule, while a state court in North Dakota blocked a similar law there.

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A ruling from the Ninth Circuit on the Arizona restrictions could take several months. Meanwhile, a second lawsuit challenging those restrictions is pending in state court. That lawsuit was filed before the Ninth Circuit had issued a ruling on the federal action, but advocates note that the two cases are not dependent on one another and instead provide different grounds for legal relief from the law. The state court action argues that because the regulation of doctors is a matter of state concern, the Arizona legislature violated state law by unlawfully delegating to the FDA a matter of state concern. The complaint also claims that Arizona lawmakers violated their own rule-making procedures when passing the regulations, because they failed to provide for enough time for the public to comment, as required under law.

The hearing before the Ninth Circuit is scheduled to begin at 9:00 a.m. this Tuesday in San Francisco.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

News Abortion

Anti-Choice Group Wants National Abortion Data Reporting Law

Teddy Wilson

Anti-choice activists claim that despite the evidence, the number of complications from abortion is higher than is being reported. States that track abortion care data have shown the procedure to be exceedingly safe.

A leading anti-choice organization is calling for a national database of abortion statistics and increased reporting requirements for states—proposals seen as part of a strategy to justify laws restricting access to abortion care.

The U.S. Supreme Court in June struck down provisions of Texas’ omnibus anti-choice law known as HB 2. The ruling relied heavily on research that showed abortion care was a safe and well regulated procedure. Anti-choice activists have long disputed those claims.

Clarke Forsythe, acting president of Americans United for Life (AUL), told Politico that there is not enough data on abortion. “The abortion advocates like to talk in vague terms about abortion but we need specifics,” Forsythe said. “We don’t have a national abortion data collection and reporting law.”

The Centers for Disease Control and Prevention (CDC) has collected “abortion surveillance” data since 1969. The CDC published the most recent report on abortion statistics in 2012.

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Abortion surveillance reports are created by compiling data from health agencies, provided voluntarily to the CDC, in all 50 states as well as the District of Columbia and New York City. The data includes deaths from abortion related complications, but does not include the number of complications that don’t result in deaths.

Reporting requirements for abortion statistics vary from state to state, with 46 states requiring that abortion providers submit regular reports, according to the Guttmacher Institute. Most states report the number of abortion procedures performed as well as the type of procedure, the gestation of the pregnancy, and demographic data of the patient.

There are 27 states that require providers to report the number of complications from abortion procedures.

The self-described “legal architect” of the anti-choice movement, AUL has been heavily involved in lobbying for state and federal laws that restrict access to abortion. The organization creates copycat legislation and distributes anti-choice proposals to state lawmakers, who then push the measures through legislatures.

Forsythe took a victory lap Monday for the organization’s role in promoting bills from the AUL’s “playbook of pro-life legislation” that were introduced this year in state legislatures. “AUL continued to assist states considering health and safety standards to protect women in abortion clinics,” Forsythe said in a statement.

Dozens of bills to increase reporting requirements have been introduced in state legislatures over the past several years. These proposals include several types of reporting requirements for abortion providers, and many of the provisions are similar to those found in AUL model legislation.

Arizona legislators in 2010 passed SB 1304, which required abortion providers to submit annual reports to the state and required the state Department of Health Services (DHS) to publish an annual report.

The Republican-backed legislation is similar to copycat legislation drafted that same year by AUL.

Since the law’s passage there have been very few complications resulting from abortion procedures reported in the state: from 2011-2014, less than 1 percent of abortions procedures in the state resulted in complications.

Arizona reported that 137 patients experienced complications out of 12,747 abortion procedures in 2014; 102 patients experienced complications out of 13,254 abortion procedures in 2013; 76 patients had complications out of 13,129 abortion procedures in 2012; 60 patients experienced complications out of 14,401 abortion procedures in 2011.

Dr. Daniel Grossman, a physician at the University of California, San Francisco who studied the impact of HB 2 for the Texas Policy Evaluation Project (TxPEP), told Politico that abortion has been shown to be exceptionally safe medical procedure.

“There’s already a lot of data that have been published documenting how safe abortion is in the U.S.,” Grossman said.“The abortion complication rate is exceedingly low.”

Anti-choice activists claim that despite the evidence, the number of complications from abortion is higher than is being reported. Joe Pojman, the executive director of the Texas Alliance for Life, told Politico that “better data” is needed.

Texas has required reporting of the number of complications from abortion procedures since 2013, and the data has shown that abortion complications are exceedingly rare. There were 447 complications out of 63,849 procedures in 2013 and 777 complications out of 54,902 procedures in 2014.

Pojman said that the Texas data “defies common sense” and that the complications are “are much smaller than what one would expect.”

The Texas abortion statistics reveal that it is safer to have an abortion than to carry a pregnancy to term in the state. Between 2008 and 2013, the most recent years for which data is available, there were 691 maternal deaths in Texas, compared to one death due to abortion complications between 2008 and 2014.

“There’s no sign that there’s a hidden safety problem happening in Texas,” Grossman said.

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