A federal district court judge in Arizona has ruled that the state’s restrictions on medication abortion – which effectively take it off the table as an option – can go forward pending further litigation. That follows an appeals court in Texas last week, which upheld similar restrictions in Texas.
For as long as the option to safely end a pregnancy by taking two pills has existed, opponents have placed roadblocks in its way that are purportedly about women’s health, but that actually seek to make it less available. These latest restrictions sound reasonable, requiring doctors to adhere to the FDA protocol for administering the two-pill combination, but medical professionals point out the protocol is outdated, less safe, more expensive, and narrows the window in which this option is available.
But District Court Judge David C. Bury said that didn’t matter, because “the State need not legislate the best means by which to achieve a goal.” While he conceded that the safety of the off-label protocol was the “strongest argument” of Planned Parenthood and other abortion providers who brought the suit, that wasn’t enough. “Where reasonable minds can disagree, there is a rational basis,” he wrote. In this case, one “reasonable mind” is made up of thousands of medical professionals and the other is a legislature openly hostile to any kind of abortion procedure.
Given the choice, a growing share of women who want to end their pregnancies have chosen to take pills over surgery. In 2001, shortly after the combined regimen of mifepristone and misoprostol were approved, they made up 6% of all abortions. A decade later, nearly a quarter of women chose medication abortions, which some found less invasive or more private.
The current standard for whether an abortion restriction is constitutional is whether it poses an “undue burden” on women seeking to exercise their constitutional right to an abortion. The Oklahoma Supreme Court found that a similar medication abortion restriction was such a burden, because it effectively banned a method of abortion, and the U.S. Supreme Court declined to hear the state’s appeal to the contrary.