Supreme Court rejects another RU-486 case

Today the Supreme Court declined to hear an appeal of a 9th U.S. Circuit Court of Appeals ruling blocking Arizona’s regulations for the medical abortion drug regimen RU-486. This is the second time in about a year that the high court has declined to hear such a case, but pro-life lawyers think the court will take a similar case soon.

This case is Humble v. Planned Parenthood of Arizona, and it is still in preliminary stages at the lower courts, so litigation will continue at that level. The Supreme Court, consistent with its usual practice, did not explain why it denied either the Oklahoma case in 2013 or the Arizona case today.

Many states are regulating surgical abortions more heavily, and abortion providers are turning more to medical abortions as an alternative. Now several states have passed laws to regulate medical abortions as well. (RU-486 is the only FDA-approved medical abortion drug regimen). Laws like Arizona’s require abortionists to follow the FDA’s RU-486 regulations, which mandate follow-up office visits and forbid the drug’s use after 7 weeks of pregnancy.

Supporters say these laws protect women from a drug regimen with dangerous side effects, aside from ending the life of the baby. They say abortion centers do little self-policing on medical abortions and often allow women to take the drugs at home. Opponents have said the laws enforce outdated regulations.

Despite the two Supreme Court denials, pro-life lawyers involved in these cases think the justices eventually will take a case. Two circuits, the 5th and 6th, have upheld medical abortion regulations in other states. The Oklahoma case was handled through the state supreme court, so that court's ruling against the Oklahoma law would not count as the “circuit split” that often prompts the Supreme Court to take a case. (In the meantime, Oklahoma legislators this year passed another version of the medical abortion law that they believe should satisfy the concerns of the state Supreme Court.)

The 9th Circuit’s ruling against the Arizona law was preliminary. It has not yet heard the case on the merits or issued a final ruling. But if the 9th Circuit does rule against Arizona finally, the Supreme Court would have a circuit split and would be more likely to take the case.

Americans United for Life (AUL) lawyer Mailee Smith has worked on amicus briefs in both the Arizona and Oklahoma cases.

“[T]he preliminary nature of the Arizona case makes the court’s decision to deny [certiorari] today not terribly unexpected,” Smith told me in an email. “AUL continues to believe that the Supreme Court will eventually hear a case involving abortion-inducing drugs, in part because this kind of sloppy use of life-ending drugs represents an expanding part of the abortion industry’s profit model.”

The Supreme Court has not heard a major abortion regulation case since 2007, in Gonzalez v. Carhart. Since 2007, Justice Samuel Alito has replaced Justice Sandra Day O’Connor, who joined opinions that supported Roe v. Wade.