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Arizona Governor Shops for Friendlier Court for Anti-Choice Laws

Nicole Knight

Arizona’s Republican governor wants to get the state out of the Ninth Circuit, as the state's GOP-held legislature pushes for new abortion restrictions.

Arizona’s Republican governor appears to be in the market for a favorable court after his state’s abortion bill was shot down by the Ninth Circuit, which is widely considered liberal, as state lawmakers are advancing new abortion restrictions.

Gov. Doug Ducey laid out his case to switch circuits in an October 30 letter to House Speaker Paul Ryan (R-WI) and Senate Majority Leader Mitch McConnell (R-KY).

The letter was sent days after a state court followed an earlier Ninth Circuit decision to block Arizona’s restrictions on a pill-induced abortion, also called medication abortion.

Ducey, citing the “voluminous” workload of the Ninth Circuit, asked the Republican-controlled Congress to place Arizona in the Tenth Circuit or create a new circuit with Arizona and other non-coastal states, which Congress has the authority to do.

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A spokesman for the governor told Rewire on Thursday that politics weren’t at play in the request.

Daniel Scarpinato, the governor’s deputy chief of staff for communications, said in an email that the driving force behind the request was “good government” and “what’s best for Arizona.”

The Ninth Circuit is made up of seven states, including California, with the majority of judges appointed under presidents Carter, Clinton, and Obama.

Ducey’s plea to Congress comes as the state’s legislative session opened with yet another push to restrict medication abortion.

SB 1324, co-sponsored by 22 Republicans and Democratic state Sen. Catherine Miranda, would require providers to follow Food and Drug Administration (FDA) labeling for medication abortions, effectively limiting the service to patients who are seven weeks pregnant. That runs contrary to the medical establishment, which agrees that patients who are up to nine weeks pregnant can take the regimen of two pills (mifepristone and misoprostol) to end a pregnancy.

SB 1324 also requires the drugs to be taken only in FDA-approved doses—a higher dosage than doctors have said is necessary—and forces patients to take the final pill in a clinic, not at home, as they do today.

The bill effectively adds new health-care hurdles in a state where the number of abortion facilities has dropped sharply. The state had about 30 abortion clinics before 2011, but that number has dwindled to six, and all are in the Phoenix metropolitan area, said Kat Sabine, executive director of NARAL Pro-Choice Arizona. Women now must drive hundreds of miles and make repeat trips for counseling and follow-ups required by GOP-backed laws, Sabine said.

The governor’s plea for a new circuit may win a hearing in Congress.

The Arizona Republic reported Thursday that U.S. Rep. Darrell Issa (R-CA), chairman of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, has indicated a willingness to hold a hearing on Arizona’s possible removal from the Ninth Circuit.

Reached by phone on Thursday, Sabine noted that other abortion restrictions have failed to hold up in court and called the latest Republican-led attempt “sickening.”

“We already know the Ninth Circuit is not going to allow the State of Arizona to put additional burdens on doctors who provide abortion care,” Sabine said.

Two years ago, the federal Ninth Circuit affirmed a lower court’s decision to block a medication abortion restriction similar to the one introduced this week. That restriction was included in an omnibus anti-abortion bill known as HB 2036. A state court also found the measure violated the Arizona Constitution by allowing the FDA to make Arizona law, as Rewire reported.

“Basically what the State of Arizona is saying is doctors don’t know better than they do,” Sabine added. “This is the same legislature that said you could do an abortion reversal last year. They clearly don’t understand medicine and they don’t understand the human body.”

A federal district court judge last fall blocked an Arizona law that would have forced doctors to mislead patients by telling them that it may be possible to “reverse” a medication abortion, as Rewire has reported. Attorneys for the state were unable to produce a legally credible expert to support the scientifically unsubstantiated claim in federal court.

Another anti-choice measure is circulating through the Arizona legislature: A spokesperson for the Arizona State Senate Republican Caucus confirmed that Senate President Andy Biggs (R-Gilbert) will introduce a bill to block all state Medicaid funding for Planned Parenthood.

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