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Appeals Court Hears Argument Over Arizona Medication Abortion Restrictions

Judges from the Ninth Circuit Court of Appeals articulated some skepticism over Arizona's medication abortion restrictions in court on Tuesday morning.

The regulation in question would require doctors to follow Food and Drug Administration protocols when administering the abortion drug, RU486. Under the FDA protocol, the drug can only be used up until the seventh week of pregnancy, as opposed to the common practice of using the drug to terminate a pregnancy up until the ninth week.

Planned Parenthood of Arizona sued to block the regulation from taking effect, arguing it would unconstitutionally restrict access to abortions and force women to follow an outdated regimen. 

The plaintiffs appealed when a lower court ruled the regulation could take effect.The Ninth Circuit judges blocked the regulation last month, and are now evaluating whether it should remain on hold.

Oral arguments were held in San Francisco on Tuesday morning. Attorneys for Arizona have argued that state lawmakers passed the legislation in an effort to protect women's health. Medical organizations, however, have submitted briefs saying that doctors have been using evidence-based protocols for RU486 that are superior to the FDA protocol.

Judge Susan Graber made this statement to Arizona's Solicitor General, Robert Ellman, as he defended the legislation to the panel.

"One could look at this as legislation as being essentially pretextual and an effort to simply flat out reduce the number of abortions by any means," Graber said. "That is one concern that I have."

Another judge on the panel, William Fletcher, seemed sympathetic to Planned Parenthood of Arizona's analysis when he told Ellman:

"The evidence now in the record seems to me to show that the evidence-based protocol is both safer, less expensive, and more convenient than the on-label protocol."

Fletcher then asked Ellman, "If that is what the evidence is, why is this [legislation] not an undo burden?"

In response, Ellman said, "Because the constitutional validity of this statute does not depend on whether the appellants protocol is better or safer than the FDA-approved protocol."

The three-judge appeals panel will decide whether to allow the regulations to take effect, or if they should remain on hold.

Jude Joffe-Block was a senior field correspondent at KJZZ from 2010 to 2017.