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Arizona Abortion Pill Law on Hold While Trial Proceeds

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By Gabriella Khorasanee, JD on June 04, 2014 4:05 PM

On the battlefield that is women's reproductive rights, women in Arizona scored a victory on Tuesday, when the Ninth Circuit Court of Appeals reversed a district court's denial of preliminary injunction.

Now with a preliminary injunction in place, it remains to be seen whether the Arizona abortion pill law will withstand a challenge on the merits.

Arizona Abortion Pill Law

At issue is Ariz. Rev. Stat § 36-449.03 and implementing regulation Ariz. Admin. Code § R9-10-1508(G), which provide that abortion pill RU-486 must be used only in accordance with its FDA label requirements ("on-label"). However, in practice, RU-486 was used in accordance with an "evidence-based" regime ("off-label" use).

The two methods differ in several ways: the on-label use requires higher dosage, has higher risk of infection, requires more visits to a clinic, is more expensive and limited for use up until the seventh week of pregnancy. The off-label use is cheaper, uses a lower dosage, fewer clinic visits, lower incidence of infection and is safe up until the ninth week of pregnancy.

The Ninth Circuit's Analysis

Even though the district court noted that Arizona presented no evidence that the law furthered the purported interest of protecting women's health, the court denied the request for preliminary injunction finding nonetheless that the law was rationally related to the state's interest. The Ninth Circuit granted an emergency injunction pending appeal, and on Monday it decided the appeal.

The Ninth Circuit had to determine whether the district court abused its discretion in not granting a preliminary injunction, and found that it did. Notably, the court found that the district court applied the wrong analysis, and found that plaintiffs had successfully "shown a likelihood of success on their claim that the Arizona law imposes an undue burden on a woman's right to abortion." The court remanded with instructions to grant a preliminary injunction.

On the Way to SCOTUS

Though the case still must be decided on the merits, regulating the use of RU-486 is the new wave in abortion restrictions being passed and challenged across the country. Two circuits, the Fifth (Texas law) and Sixth (Ohio law), have upheld the bans, while two states Oklahoma and North Dakota have blocked such laws from going into effect, reports ThinkProgress -- which only means one thing -- it's soon going to be time for SCOTUS to step in.

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