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Could Ninth Circuit send abortion back to the Supreme Court?

Tuesday, the U.S. Court of Appeals for the Ninth Circuit concluded in Planned Parenthood Arizona v. Humble that those challenging an Arizona law barring the off-label use of abortion-inducing medications were entitled to a preliminary injunction.  In reaching its conclusion, the court noted its disagreement with the U.S. Courts of Appeals for the Fifth and Sixth Circuits, each of which previously upheld similar restrictions on the use of abortion-inducing medications.  According to the Ninth Circuit, the analyses adopted by its sister circuits “are inconsistent with the undue burden test as articulated and applied in Casey and Gonzales” and conflict with the Ninth Circuit’s prior precedents.

The Ninth Circuit’s Humble opinion creates a clear circuit split on whether states may restrict the use of abortion-inducing drugs and further deepens the circuit split I noted here on the proper contours of the under burden test post-Gonzales v. Carhart.  This increases the likelihood that the Supreme Court will next consider the constitutional limits on state abortion regulation before the next presidential election.  The question now is less whether the Court will revisit this issue so much as when. I assume Arizona will seek en banc rehearing or immediately file for certiorari, but this choice will only affect the timing of eventual Supreme court review

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.

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