In the latest weird news out of Arizona, the state has just filed to appeal a judge’s decision about an abortion law that no longer exists.
Yes, you read that correctly: The appeal concerns a law that was overridden when Governor Doug Ducey signed Senate Bill 1324 last week.
Before SB 1324, state law (known colloquially as House Bill 2036) required doctors administering medication abortions to follow the Food and Drug Administration guidelines for using the pills – something that certainly sounds like a good idea, except that over the years, the medical community has discovered that some of these provisions aren’t accurate.
A medication abortion uses two pills to terminate pregnancy. The first, mifepristone, breaks down the lining of a woman’s uterus, while the second, misoprostol, causes the uterus to empty, similar to what occurs during menstruation.
Until recently, the FDA said the pills should only be used during the first seven weeks of pregnancy, but since evidence showed that the pills could be taken safely and effectively until the ninth week of a pregnancy, doctors across the country were issuing them as such.
In 2012, following the signing of HB 2036 – the law that said doctors must follow the FDA’s label — the Center for Reproductive Rights, the American Civil Liberties Union, Planned Parenthood Federation of America, and a series of smaller law firms sued the state.
The crux of their legal argument was that as per the Arizona Constitution, only the state Legislature has the power to decide laws, so forcing doctors to follow the FDA labels – which ostensibly could change at any time – was unconstitutional.
“The law said that every time the label changed, Arizona law changed too,” says David Brown, staff attorney for the Center for Reproductive Rights, and “that’s unconstitutional because only Arizona has authority to say what law is, and you can’t delegate that power to the FDA.”
In October 2015, a federal judge sided with the plaintiffs. It was a big win for the pro-choice movement, since now doctors in Arizona could do what doctors all across the country were doing and issue the pills until the ninth week of pregnancy.
It is this ruling that the state just announced it was appealing, and here’s why it’s weird:
Not too long after the decision, the pro-life movement in the state decided to write a new bill (SB 1324) saying doctors have to follow the labels as they existed on December 31, 2015. It was an attempt to make the outdated procedures the law again, because, remember, the judge said the Legislature has to make the law — but didn’t say anything about those laws needing to be medically up to date.
Also, and coincidentally, days before Ducey signed the law, the FDA actually updated the medical abortion drug labels to be in line with how doctors were using the pills safety – i.e., up until the ninth week. Some wondered if this would compel Ducey to veto the bill so as to not codify outdated science into law, but he ended up signing it.
At this point in time, because there’s nothing illegal about making the outdated medical directions law, and because SB 1324 is in line with the court’s decision, it appears to make little sense for the state to appeal the October 2015 decision.
“With the passing of [SB 1324], the particular constitutional problem with the old law now no longer exists,” Brown says, adding that he has no idea why, or on what legal grounds, the state is appealing the decision about the 2012 law.
“In all my years as an attorney, I’ve never seen an appeal to defend the constitutionality of a law that no longer exists,” he adds. “What they’re argument could be, I don’t know.”
The state just filed a one-page notice of appeal, and according to Brown, has a few months to write and submit the paperwork outlining the legal argument behind the appeal.
“I guess we’ll just have to see what their papers say.”
**Update 4/7/16: Steven Aden of the Alliance Defending Freedom, the law firm work with the AG's office, explains in an e-mail why the state is filing an appeal :
“In view of the fact that changes are occurring at the regulatory and legislative levels, the appeal was filed in order to preserve the State’s legal options. The Attorney General’s office continues to evaluate the regulatory framework with an eye toward doing all that it can to protect the health and safety of Arizona’s citizens.”
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