A judge refused late Wednesday to block the state from enforcing new regulations this coming week that an attorney for the state's largest abortion provider said will impair the ability of women to terminate their pregnancy.
Maricopa County Superior Court Judge Donald Daughton said Planned Parenthood Arizona waited too long before asking him to bar the Department of Health Services from enforcing a new rule to prohibit anyone other than a doctor from performing various medical procedures before or after an abortion.
He pointed out the state approved the new rules at the end of April. But Daughton noted that Planned Parenthood did not file its legal papers until Oct. 14 -- and the rules are set to take effect Monday.
Planned Parenthood President Bryan Howard said he does not know whether his organization will seek another way to block those rules. But he said the regulations, if implemented, will result in delays for women because there are not enough qualified doctors willing to perform abortions.
And Planned Parenthood attorney Eve Gartner said the longer the wait to terminate a pregnancy, the greater the risk to the patient.
The legal fight is an extension of a lawsuit Planned Parenthood filed last year after the Legislature voted to prohibit anyone other than a doctor from performing abortions.
Daughton enjoined the state from enforcing that law, ruling that challengers were likely to prevail once the case goes to trial. That trial, though, remains on hold while his injunction is being argued to the Court of Appeals.
The new rules at issue say doctors must be the ones to do everything from determining the gestational age of the fetus to a remaining on the premises until all patients undergoing any kind of surgical abortion are stable and ready to leave.
At a hearing Wednesday, Gartner told Daughton those rules amount to an end-run by the state of his 2009 order.
She said the shortage of qualified doctors remains. Gartner said requiring a doctor to perform the pre- and post-abortion procedures would have the same net effect as requiring a doctor to do the abortion itself: a delay in care for women.
Assistant Attorney General Carrie Brennan did not argue the merits of that claim. Instead, she told Daughton that Planned Parenthood waited too long to seek the relief.
"Planned Parenthood could have filed in May,'' she said, when the final rules were published. "And they didn't.''
Cathy Herrod, president of the Center for Arizona Policy, which pushed lawmakers to enact the restrictions in the first place, said the real underlying issue is her organization's belief that anything involving abortion should be performed by a doctor.
"This is about women being given appropriate medical care when seeking an abortion,'' Herrod said. "Legally, the best medical care for a woman seeking an abortion is given by a licensed physician, not by anyone else.''
Herrod, however, did not deny that her organization has been at the forefront of pushing for greater restrictions on abortion. And its official position is that the procedure should be outlawed entirely.
She also said Daughton got it wrong when he issued last year's injunction against the ban on nurse-performed abortions, which is why that ruling is being appealed.
State law allows nurse practitioners to perform "medical abortions'' involving a patient being given the abortion-inducing drug RU-486.
But a 1999 law regulating abortions left unclear the question of who could perform a surgical abortion. That led to Planned Parenthood allowing certified nurse practitioners to perform early-term abortions where a fetus is vacuumed out of the womb.
Last year the Legislature enacted a series of new abortion restrictions, one spelling out that all surgical abortions be performed by a physician. Daughton's injunction blocks that from taking effect.
The state Board of Nursing ruled two years ago that vacuum abortions can be performed by properly trained certified nurse practitioners. Gartner argued that if they can safely do the actual procedure, there is no reason they can't do the preparatory and follow-up work.
But Herrod cited a 1998 death of a 33-year-old woman as proof of the need for a doctor to do the pre- and post-abortion procedures. The doctor was accused of failing to recognize that the woman was 37 weeks pregnant, nearly full term, far more than the 23 weeks he listed on his medical records. The patient also bled out in the recovery room after he had left the premises.
Gartner said the need to allow abortions and related procedures to be performed by someone other than a doctor was underlined when Planned Parenthood's sole qualified nurse practitioner quit earlier this year.
"There were periods this summer where women were waiting much longer than was medically warranted to get abortions,'' she said, resulting in greater risk.
Planned Parenthood has since hired a replacement. Gartner said she was scheduled to start performing abortions Monday, but only if Daughton blocked the new rules.