The ongoing effort by Republican lawmakers and Gov. Doug Ducey to limit access to abortion reached an absurd level last week after Ducey signed a bill that locked in outdated regulations for the abortion pill while suggesting that he'd welcome the chance to reverse the new rules to return to the current status quo.
How exactly did we get here? For years, Arizona Republicans have been working, at the behest of the Christian conservative Center for Arizona Policy, to limit the use of medication abortion. The abortion pill was first approved by the FDA in 2000 with a recommended protocol that limited its use to the first seven weeks of pregnancy.
But over the years, doctors have developed what's called "off-label protocols"—that is, as the drug has been use, they've determined that it was safe to use it up to nine weeks of pregnancy, at a lower dose and with fewer trips to the doctor.
But anti-abortion activists have pushed legislation around the country to limit the use to the 2000 FDA protocol, claiming that they were concerned about the health and safety of women who used the abortion pill. In 2012, the Legislature passed a law requiring doctors to follow the original FDA protocol.
The 2012 law was so flawed that it was knocked down by both state and federal courts. Maricopa County Judge J. Richard Gama knocked it down because the law was based on an FDA protocol that could change, so the Legislature was essentially delegating authority to the FDA. Meanwhile, the Ninth Circuit knocked it down because it created an undue burden on women seeking abortions and sent the case back down to the district court for further litigation. But the federal case ended up on hold until the lawsuit on the state level was resolved.
So this year, state Sen. Kimberly Yee ran SB 1324 in an effort to restart the legal fight. The strategy was to lock in the FDA protocol of Dec. 31, 2015, in order to satisfy the state court's concern about the possibility of the FDA protocols changing. The bill passed the Legislature on Thursday, March 24.
But here's where the whole plan came off the rails: As the bill was sitting on Ducey's desk, the FDA announced last Wednesday, March 30, it was updating its protocols to the accepted off-protocol use. That meant the entire alleged purpose of the bill—protecting the health and welfare of women by following the FDA protocol—no longer had any medically scientific backing.
Julie Kwatra, legislative chair of the Arizona chapter of the American Congress of Obstetricians and Gynecologists, said that the state shouldn't be requiring doctors to follow an outdated protocol.
"The impacts of tying the administration of medication abortion to an outdated FDA protocol rather than today's evidence-based standards include requiring women to return to their doctor for the second medication involved in medication abortion rather than taking the second medication at home, and tripling the dose of the first medication (Mifeprex) from 200 mg to 600 mg," Kwatra said in a Planned Parenthood press statement. "That's not the modern standard of care, and simply put, is bad medicine."
Jodi Liggett, the director of public policy for Planned Parenthood Arizona, called the suggestion that the bill was designed to protect the health and safety of women "ludicrous."
"You have the statewide and nationwide organizations of obstetricians and gynecologists they've got a more current medical practice that involves fewer visits and a lower dosage, which is clearly safer and better for women."
Nonetheless, Ducey signed the bill, which is now a legal nightmare because it would force doctors to prescribe an outdated dosage of the abortion bill that's three times the recommended dosage.
Ducey, who didn't mention anything about the health and safety of women in a letter announcing that he had signed the bill, blamed the whole mess on Planned Parenthood for having the audacity to sue the state over the 2012 bill.
"The Legislature acted in good faith to deal with litigation brought by an organization that profits from and advocates for expanded access to abortion," Ducey wrote in his signing letter. "In such a case, I will always stand with those advocating life."
Ducey added that "given the unexpected actions by the FDA, some changes may have to be made in a later bill, and I stand ready to consider those changes when they reach my desk."
But with the session near the end and committee hearings for the most part over, lawmakers will have to scramble to come up with enough legislative sleight of hand to stop this legislation from heading to the courts, where—given the updated FDA protocol—it's a sure loser.
And while the legal bills over the 2012 law have yet to be determined because the case remains unresolved, the state of Arizona has since 2010 paid more than a million dollars to attorneys for Planned Parenthood and other groups that have defeated abortion restrictions in court.
A Ducey spokesman couldn't comment on why Ducey thought the state would prevail in court once this law is challenged because the 2012 case is in ongoing litigation.
In other abortion-related news as the Legislature lurches to the end:
• Ducey signed a bill that blocks the use of fetal tissue in biomedical research in the state. Planned Parenthood Arizona's Jodi Liggett said that "to the degree that we becoming a biomedical center of research, fetal research has legitimate uses, so the fact that we've cut ourselves out of that, even for the future, is not good."
• Ducey signed a bill banning Planned Parenthood from a program that allows state employees to make regular donations from their paychecks to nonprofit organizations.
• House Bill 2599, which seeks to block Planned Parenthood from providing health services other than abortion to low-income women on the state's AHCCCS program, is awaiting a final vote in the Senate.