The Back-Up Plan. A terrible movie, but not a bad legal strategy.
Though challengers to Arizona's HB 2036, a law that, in part, restricts providers' abilities to provide medical (drug-based) abortions according to accepted medical practice rather than a more restrictive FDA protocol set forth before experience dictated different treatment regimens, already have a credible argument making its way through the Ninth Circuit, they haven't limited themselves to federal courts and constitutional questions.
A parallel suit, filed in state court earlier this week, raises interesting issues of federalism and administrative procedure.
It's always advisable to have a backup plan, right?
Plan A: It's Unconstitutional (Federal Court)
An undue burden on a woman's access to abortion of a non-viable fetus is unconstitutional per Planned Parenthood v. Casey. A similar challenge to a similar RU-486 restriction in Oklahoma met its demise, at least initially, on the basis of that proposition.
This is the argument that will be pressed in the Ninth Circuit in the ongoing RU-486 appeal, and it stands a decent chance of prevailing, especially in the liberal Ninth Circuit.
Plan B: State Regulates Doctors, Notice and Comment (State Court)
Should the federal appeal fail, that's where the state case comes in. The complaint, according to RH Reality Check, argues that because the regulation of doctors is the state's duty, the restriction of treatment to the FDA protocol violates Arizona law by unlawfully delegating a state duty to a federal agency. It's your garden variety states' rights argument.
There's also a state administrative procedure argument. The plaintiffs are arguing that Arizona lawmakers violated rule-making procedures when the regulations were passed without sufficient time for the public commentary, as required under law. The text of the statute actually requires the Director of the Arizona Department of Health Services to pass the restrictive regulation, and provides an exemption to the state's rule making requirements.
Can one statute exempt an agency from a requirement imposed by another statute? That's an issue for the state courts to figure out. (I only go to Arizona for Spring Training baseball, not to practice law.) It certainly is an interesting argument, though the non-delegation argument seems much more likely to succeed.
- Planned Parenthood v. Humble (Complaint via RH Reality Check)
- Abortion Stay Extended, Ballot Access Case Set for Argument (FindLaw's Ninth Circuit Blog)
- Another AZ Abortion Law Falls; Would've Defunded Planned Parenthood(FindLaw's Ninth Circuit Blog)