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Ariz. will appeal ruling that struck down medication abortion restriction

Arizona filed a notice that it will appeal a ruling that struck down a 2012 medication abortion restriction that violated the state constitution, the Phoenix New Times reports.

According to David Brown, an attorney at the Center for Reproductive Rights, the state will have several months to submit their formal arguments in the appeal (Wasser, Phoenix New Times, 4/6).

Background

The law (HB 2036) would have barred physicians from administering medication abortion drugs beyond seven weeks of pregnancy, among several other abortion-related provisions. Physicians also would have been required to administer both drugs in the medication abortion regimen on site, necessitating an extra office visit, and at the dosage provided on the now-outdated FDA label, which at the time was higher than the dosage typically used in practice.

In October 2015, Maricopa County Superior Court Judge Richard Gama said the law violated the state constitution because it would force the state to rely on FDA's protocols and would have to change whenever the agency updated drug labels. According to Gama, that requirement violates the state constitution, which bars state lawmakers from assigning their authority to other entities (Women's Health Policy Report, 10/16/15).

A separate federal case over the rules was on hold while the state lawsuit was decided. The federal lawsuit died after the state court held the law was not properly enacted (Women's Health Policy Report, 8/18/15).

Ariz. enacts separate medication abortion restriction

Last Wednesday, FDA updated its guidelines to align with the scientifically proven, evidence-based standard of care that most providers already had been using in prescribing the drug. The day following FDA's announcement, Arizona Gov. Doug Ducey (R) signed a new law (SB 1324) that requires abortion providers in the state to follow the regimen that was posted as guidelines as of Dec. 31, 2015. The new law openly disregards FDA's updated medication abortion drug label.

The updated FDA label approves Mifeprex for medication abortion up to 70 days after a woman's last menstrual period; reduces the dosage of Mifeprex from 600 mg to 200 mg; changes the dose and timing of misoprostol, the second drug in a medication abortion; and specifies that a woman can receive the second drug -- to take later at home -- at the same time she receives Mifeprex. The label also allows medical professionals other than physicians, such as a nurse practitioner, to administer the drugs (Women's Health Policy Report, 4/5).

Brown highlights legal quandary

Brown noted, "With the passing of (SB 1324), the particular constitutional problem with the old law now no longer exists." He noted, "In all my years as an attorney, I've never seen an appeal to defend the constitutionality of a law that no longer exists," adding, "What [the state's] argument could be, I don't know" (Phoenix New Times, 4/6).