Supreme Court allows injunction in Arizona abortion case to stand

The US Supreme Court on Monday let stand a lower court injunction temporarily blocking implementation of a 2012 Arizona law that sought to restrict drug-induced abortions.

Arizona officials had asked the high court to take up the case to reverse the injunction and invalidate a finding by a panel of the Ninth Circuit Court of Appeals that the Arizona law imposed an unconstitutional burden on a woman’s right to choose. 

The justices rejected the Arizona petition in a one-line order. They offered no explanation.

Abortion rights groups praised the high court action.

“By allowing to stand the Ninth Circuit’s strong decision blocking this underhanded law, the US Supreme Court has ensured Arizona women will continue to have the same critical and constitutionally protected health care tomorrow that they have today,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement.

“Women who have made the decision to end a pregnancy will continue to get safe, legal care based on the expertise of their doctors, not politicians who presume to know better,” Ms. Northup said.

Arizona is among several states in recent years where conservative lawmakers have enacted statutes that made it more difficult for abortion clinics to offer their services to women.

Some states required clinic doctors to obtain local hospital admitting privileges. Others mandated that clinics make expensive upgrades to their facilities to meet surgical standards, while other states – like Arizona – passed laws dictating how nonsurgical abortions are to be performed.

Rather than allowing abortion clinics to perform drug-induced abortions using the most up-to-date procedures that medical specialists consider to be the safe and effective “best practice,” the Arizona law required that they adhere to an outdated protocol approved by the Food and Drug Administration 14 years ago.

The question in the Arizona case is whether the 2012 law is an acceptable way for a state to regulate abortions or whether it rises to the level of imposing an unconstitutional burden on a women’s right to choose to have an abortion.

In pretrial litigation, a federal judge refused to temporarily block the Arizona law. An appeals court panel reversed, ruling that the law created an unconstitutional burden. The appeals court issued a temporary injunction pending resolution of the case at trial.

It was that pretrial order that was appealed to the Supreme Court.  

“Plaintiffs have introduced uncontroverted evidence that the Arizona law substantially burdens women’s access to abortion services, and Arizona has introduced no evidence that the law advances in any way its interest in women’s health,” the Ninth Circuit Court of Appeals said.

“Plaintiffs’ evidence shows that the Arizona law usurps providers’ ability to exercise medical judgment by requiring them to administer a less safe, less effective treatment regimen,” the appeals court said.

State lawyers argued that the law was designed to protect women from dangerous abortion-inducing drugs.

In rejecting that argument, the appeals court said the Arizona restrictions were not justified by any state interest. “Here the medical grounds thus far presented are not merely feeble,” the court said. “They are non-existent.”

Arizona Solicitor General Robert Ellman urged the Supreme Court to take up the case and reverse the Ninth Circuit.

He wrote in his brief that the appeals court imposed a new test to determine whether a state law creates an undue burden. He said the real test is whether the state regulation creates a substantial obstacle to obtaining an abortion.

Instead of enforcing that test, the appeals court sought to weigh the regulation’s burdens against the state’s own justifications for the new law, Mr. Ellman said.

The Ninth Circuit’s approach is different from the standard analysis relied upon by judges in the Fifth and Sixth Circuits, who upheld state restrictions on the protocol for drug-induced abortions in Texas and Ohio, Ellman said.

The underlying split should be resolved by the high court, he said.

Eight states filed a friend-of-the-court brief in support of Arizona’s position. They are Oklahoma, Nebraska, South Carolina, Alaska, Idaho, Montana, Michigan, and Texas.

The states’ brief notes that drug-induced abortions are relatively new in the United States. Prior to 2000, the only abortions available were undertaken surgically.

“Arizona, like other states, has done nothing in this case to restrict the availability of surgical abortions,” the states’ brief says. “Instead, Arizona has sought to require doctors to adhere to FDA-approved regimens for medication abortions.”

The states’ brief says that the case isn’t about restricting access to abortions, but rather about the type of restrictions a state may place on a particular kind of abortion.

Lawyers with Planned Parenthood Federation of America urged the high court not to take up the case and allow the lower court ruling to stand.

Planned Parenthood says that the Arizona regulation, if enforced, would amount to a complete ban on drug-induced abortions in the state.

“This dangerous and misguided law should never have passed in the first place,” Planned Parenthood president Cecile Richards said in a statement. “Politicians across the country should take note – these harmful and unconstitutional restrictions won’t be tolerated by the courts or the public,” she said.