Unable to stop new abortion restrictions from taking effect Tuesday, foes now hope to get a federal appeals court to block them from being enforced.
Attorneys for Planned Parenthood and the Tucson Women's Center filed legal papers Tuesday asking the 9th U.S. Circuit Court of Appeals to overturn a decision by Judge David Bury allowing the rules to take effect while the legality of the law is being litigated. Attorney David Brown of the Center for Reproductive Rights said Bury did not correctly apply the law in deciding an injunction is inappropriate.
But until the appellate judges act, state law now forbids the use of RU-486 in any manner but what was approved by the U.S. Food and Drug Administration.
That most immediately bans medication abortions beyond the seventh week of pregnancy. Doctors at both clinics had been using a different mix of drugs to terminate pregnancies up through nine weeks.
Planned Parenthood President Bryan Howard said that, based on 2012 records, about 800 women a year will no longer have the option of a medication abortion and instead have to undergo surgical abortions.
It also means an extra trip to a doctor: The now-banned practices had allowed women to take the second drug at home.
Bury, in his Monday ruling, said state lawmakers were legally entitled to impose the new restrictions based on their conclusion that they are protecting the health of women.
Brown pointed out that Bury acknowledged in his own ruling that there is evidence that medication abortion “is extremely safe and safer than the alternative surgical procedure, which is also a very safe procedure.” He also noted the judge said there is evidence there is a “clear advantage” to the current procedures because it can be used through the ninth week of pregnancy “which is significant because many women do not discover their pregnancies until approximately 49 days.”
Conversely, Bury said “medication abortions will cost more and require more time and effort to secure.”
But Brown said federal courts have consistently said states can impose new restrictions on abortions only if there is evidence that it actually will improve the health of women, and in this case, he said, the uncontroverted evidence was to the contrary.
Bury did conclude that protecting women's health was the purpose behind why legislators enacted the law, but Brown said that purpose does not make up for the lack of actual evidence that the change really does that.
“Columbus’ purpose was to get to Asia,” Brown said. But the evidence was he got somewhere else.
“Similarly, just because the Legislature is saying its purpose is to help women, that doesn't mean that they actually are doing so,” he said. “And the evidence that the court considered shows the exact opposite, that they're actually hurting them.”
Brown is hoping to get a three-judge panel to consider the issue on an expedited basis. He said action on his request could come within days.