Tuesday, June 03, 2014

Planned Parenthood v. Humble (9th Cir. - June 3, 2014)

This is a crush.

Wholly apart from the composition of the current panel -- three judges appointed by President Clinton -- the stark reality is that the latest Arizona anti-abortion provisions had very little chance of surviving in any event.  Because, as Judge Fletcher's opinion persuasively demonstrates, there's really no reason for these restrictions other than making abortion more difficult.

Yes, it might "sound good" to say that you can only have an abortion with "on-label" use of various medications.  Indeed, when I first started reading the opinion, I too shared a prejudice against what's called "off-label" use of medications.  Still do, to some degree.

But in this particular case, Judge Fletcher convincingly demonstrates that off-label use is much, much better than on-label use.  I'm still not exactly sure why that's the case:  Why the "best" use of the drugs is left off the label rather than on.  But I'm persuaded it's clearly true.

So while Arizona's statute may have an ostensible justification, there's no real one.  Other than making abortions more difficult.

And even under existing Supreme Court precedent, that's not good enough.

So Arizona "strikes a blow" against abortions by passing the relevant statute.  The net effect of which is simply to give Planned Parenthood more attorney's fees.

Well done.