An attorney for the state is asking a judge to rebuff a bid by abortion providers to prevent a new restriction on the procedure from taking effect as scheduled less than two weeks from now.
In legal filings Thursday, Assistant Attorney General Michael Tryon did not dispute that the law, set for implementation April 1, would prevent the use of medications to terminate a pregnancy after the seventh week of pregnancy. That would shave two weeks off current practices by Planned Parenthood and the Tucson Women's Clinic.
But Tryon said that still leaves the option of a surgical abortion all the way up to the point of viability. He told U.S. District Court Judge David Bury that means there is no irreparable harm to women – and no grounds to place the law on “hold” while its legality is litigated.
Hanging in the balance is the question of whether more than 800 women a year are going to lose an option for the simpler procedure. These are women who last year had a medical abortion are beyond seven weeks – the new limit under the Arizona law – but less than 10 weeks, which is the current practice.
The issue is even more critical in Northern Arizona where Planned Parenthood claims that having to follow the new state-mandated procedure will eliminate the option for all abortions at its Flagstaff clinic, where only medical abortions are allowed. That is because what the state wants requires a doctor to be available more than she is now.
But Tryon told Bury he should ignore that fact as irrelevant to the stated legislative goal of the law to minimize the risks of medication abortions and preserve maternal health.
“If Planned Parenthood is unable to staff and maintain clinics in Northern Arizona, it is more likely a reflection of its failed business practices,” Tryon wrote.
The fight stems from the method abortion providers use in a two-drug procedure to terminate a pregnancy. The first dose is administered at a clinic; the second is taken by the woman at home one to two days later.
But the 2010 Arizona law set to take effect spells out that the first drug, known as RU-486, to be administered only as specifically approved by the U.S. Food and Drug Administration. That involves not only different dosages but also that both be taken at a clinic, requiring a second trip.
Attorneys for Planned Parenthood and the Tucson Women's Clinic said there was “no medical justification” for the change, saying what the law mandates is “less effective, less accessible, more expensive, and causes more side effects.”
Tryon, however, said the FDA-approved protocol “also represents an acceptable standard of care.” He argued that lawmakers had other legitimate reasons for insisting they be followed.
One is the possibility that a woman, sent home with the second drug, might not follow the process. And Tryon said legislators had evidence of “adverse effects” of medical abortions.
One issue Bury has to consider in whether to block the law from taking effect is that question of who would be harmed by a delay in implementation. On one side that includes Tryon's argument abortions remain an option, albeit not necessarily the type of procedure that some women may want.
But the lawyers for the abortion providers pointed out to Bury that it has taken close to two years for Will Humble, director of the Department of Health Services, to craft and implement the rules necessary to start enforcing the 2012 law. That, they suggested, shows Humble “felt no urgency” to enforce the law.
“And if the Legislature had thought the problem was so pressing, it would have required (Humble) to implement the act by a certain date,” they argued.
Whatever Bury decides after a hearing next week will not be the final word on the law but only whether it gets placed on "hold'' while both sides argue the constitutionality of the underlying law. But Bury will need, as part of any ruling on an injunction, to make at least a preliminary ruling on which side he thinks ultimately will win.