Arizona Attorney General Seeks to Bring Latest Abortion Battle All the Way to Supreme Court
Matthew Hendley Attorney General Tom Horne.
Attorney General Tom Horne wants to take a legal battle against Planned Parenthood of Arizona all the way to the United States Supreme Court. The two are fighting over a law passed by the Arizona Legislature in 2012 that would force physicians to follow the original FDA approval guidelines for a medication used in non-surgical abortions.
The debate stems over shifts in how Mifepristone--also known as RU486--has been used since its initial approval by the Food and Drug Administration. Mifepristone is the first of two drugs used in medication-induced abortions; it essentially encourages the body to stop nourishing a pregnancy. When the FDA approved it in 2000, women were given nearly three times the dosage they are today, says Bryan Howard, President and CEO of Planned Parenthood of Arizona. Mifepristone could only be used during the first seven weeks of pregnancy, and women were mandated to return to their doctors for an additional visit in which they would be administered a second medication used to induce contractions.
But in the 14 years since Mifepristone's original FDA approval, hundreds of thousands of women have had medication-induced abortions, and knowledge of the medication has expanded far beyond what was known back in 2000. "Uses of medication evolve after the point at which the FDA approves them," Howard says. "That's not just standard, but the expectation."
Over time, doctors discovered that a lower dosage of Mifepristone was just as effective, that it could be used through the first nine weeks of pregnancy, and that it was not medically necessary for women to complete the second portion of the procedure at a doctor's office (women can now take the second pill at home). Such shifts in the use of a medication are known as evidence-based medicine, a practice that the FDA does not generally restrict.
The discovery of broader uses of Mifepristone came about quickly. Here in Arizona, medication-induced abortion was offered by Planned Parenthood beginning about six months after the FDA first approved the medication. Best practices in the use of Mifepristone already had evolved by that point, Howard says. "When we started, the lower dosage already had been identified as preferable. The lower dosage's efficacy became apparent very quickly," Howard says.
These changes--using Mifepristone through the ninth week, in smaller doses, and without a mandatory second visit to the doctor--have been in place for almost a decade, Howard says. In that time, Planned Parenthood, which provides about one-third of abortion services nationally, has offered medication-induced abortion to about 130,000 women. And Howard says the tweaks in Mifepristone's administration are not used just at Planned Parenthood but within the OB-GYN community as a whole.
But in 2012, the Legislature approved a bill that would set back the clock, only allowing physicians to use Mifepristone according to the guidelines under which the FDA originally approved it. "They required that providers go back to 2000 standard and not be allowed to recognize the medical learning that had taken place since then," Howard says.
Howard thinks the legislature's reasoning was simple. "We would contend that the legislature, or the proponents within who proposed this, wanted to make the process of non-surgical abortion more burdensome," he says.
When the law passed, the State Department of Health Services was given up to two years to craft the specific guidelines for how the new regulations would be implemented. They published the new rules in February, with plans for them to take effect in April. The regulations closely mirrored the FDA approval guidelines, shrinking the window of time during which women could seek medication-induced abortion, forcing doctors to prescribe the original, higher dosage (one that was no longer deemed medically necessary and that would come at a higher cost) and dictating that women must make an additional trip to the doctor's office to receive the second medication.
In Arizona, that would mean four trips to the doctor for a medication-induced abortion: an initial counseling session 24 hours before the procedure, a second and third trip to receive Mifepristone and the second medication, and a fourth and final follow-up visit two weeks later. "Between the state-mandated counseling visit and the state-mandated return visit, you are going from two visits--which are medically indicated--to four visits," Howard says. "We know for poor women having to take time off work, women who already have children at home, or women from rural communities, this can be an insurmountable barrier."
So last March, before the regulations went into effect, Planned Parenthood of Arizona decided to fight the new law. Along with Dr. William Richardson, an OB-GYN in private practice, Planned Parenthood brought suit in Tucson Federal District Court, arguing that there was no evidence of any medical benefit to women in rolling back to the 2000 standards. Implementation of the new regulations was put on hold while the case was resolved.
The judge in Tucson ruled that while there was no demonstrable benefit to women in reverting to the new (old) standards, the Legislature still had the authority to pass such a law. So for 24 hours, on April Fool's Day of this year, the 2012 law finally went into effect.
Planned Parenthood of Arizona spent that day assessing how much it would have to charge for medicine-induced abortions under the throwback measures. The organization previously had charged the same for medicinal and surgical abortions, Howard says, in large part so that women did not have to consider cost in making a decision about which route to go. The law wasn't in place long enough for Planned Parenthood to finalize its cost differential, but Howard says they were likely going to have to charge women $200 more for a non-surgical abortion than for a surgical abortion under the new measures.