The Ninth Circuit Court of Appeals blocked Arizona’s medication abortion restriction Tuesday, calling the law an “undue burden” on women that lacked any basis in medical evidence.
The rationale for the Arizona law was to “protect women from the dangerous and potentially deadly off-label use of abortion-inducing drugs, such as, for example, mifepristone.” But the the Ninth Circuit’s three-judge panel, in an opinion authored Tuesday by Judge William A. Fletcher, examined the record and the opinions of physicians and found that “Arizona introduced no evidence that the law advanced in any way Arizona’s interest in women’s health.”
The newer, off-label regimen offers women more choices: It makes the pill available two more weeks, lowers the dosage for potentially fewer side effects and less out-of-pocket expense, and means one fewer visit to the clinic. It’s also the one preferred by major medical organizations.
“Consistent with common terminology,” the court said, “we call this off-label regimen the ‘evidence-based’ regimen.”
As the decision notes, “Medication abortions now account for 41% of all first-trimester abortions performed at Planned Parenthood clinics nationwide.” Many women prefer to take pills in the privacy of their home to the more common vacuum aspiration procedure. “Medication abortion is less invasive than surgical abortion, which is a particularly important consideration for survivors of rape or sexual abuse,” the court said.
The panel also argued that decisions by two other circuit courts on medication abortion restrictions – the Fifth Circuit’s upholding a Texas law and the Sixth Circuit upholding an Ohio law – are “inconsistent with the undue burden test as articulated and applied in Casey and Gonzales.“ In other words, they break with Supreme Court precedent, daring the high court to clarify, again, how far states can go in restricting abortion.
For now, the case goes back to the trial court. But if the case goes back up the ladder through successive appeals, the Supreme Court could see that circuit split as reason enough to take the case. Last year, the Supreme Court declined to take up Oklahoma’s medication abortion restriction, which had been held unconstitutional by that state’s highest court.