With Supreme Court Decision Pending, California Braces for What Comes Next in Abortion Pill Legal Saga

The Supreme Court issued an order Friday that temporarily stays any changes to federal rules for use of an abortion drug, while it takes time to more fully consider the issues raised in a court challenge.

The order, signed by Justice Samuel Alito, put a five-day pause on the fast-moving case so the justices can decide whether lower court rulings restricting the Food and Drug Administration’s approval of the drug, mifepristone, should be allowed to take effect in the short term.

The justices are being asked at this point only to determine what parts of an April 7 ruling by U.S. District Judge Matthew Kacsmaryk in Texas, as modified by an appellate ruling Wednesday, can be enforced while the case continues. The order expires late Wednesday, suggesting the court will decide that issue by then.

The legal saga that has unfolded over mifepristone — one of two drugs commonly used for medication abortions in the U.S. — has caused concern in California, where access to abortion is a constitutional right under state law. Gov. Gavin Newsom announced last week the state would begin stockpiling abortion medications in the event that restrictions come into effect. The governor reiterated that abortion is still legal and accessible in California as “a fundamental freedom.”

In a statement to KQED on Friday, the California Department of Public Health said it was assessing the implications of recent rulings and evaluating various options on how to ensure access to reproductive services and medications, saying it was working with “multiple departments across the California Health and Human Services Agency to ensure that individuals in California are not adversely impacted by the recent court rulings regarding the use of Mifepristone.”

U.S. Rep. Barbara Lee (D-Calif.), who is co-chair of the Pro-Choice Caucus, said that while Alito’s decision Friday meant that mifepristone is still accessible, she warned that this access is still “under threat” pending the high court’s decision, and urged continued vigilance.

“I think we need to realize that this is another step toward Republicans trying to put into law a national ban on abortion,” said Lee in an interview with KQED. “My constituents are saying they’re worried, because some of these broad, really backwards types of decisions could turn the clock back on scientifically approved drugs nationwide.”

The East Bay Congressmember added that she and her colleagues were prepared to act if legislation was needed to strengthen the FDA’s authority and prevent court decisions from undermining that authority, warning of the implications such decisions may have down the line.

“[The] FDA approves the safety and efficacy of drugs for all types of medical conditions, including Alzheimer’s,” Lee said. “So what does this say about a process that could hinder other kinds of scientific research for other types of medical conditions? That is very dangerous and people are concerned about that, in terms of the precedent setting with these decisions.”

The Supreme Court finds itself immersed in a new fight involving abortion less than a year after conservative justices reversed Roe v. Wade and allowed more than a dozen states to effectively ban abortion outright.

President Joe Biden’s administration and New York-based Danco Laboratories, maker of the pill, asked the justices to intervene.

White House Press Secretary Karine Jean-Pierre said in a statement Friday evening that the administration continues “to stand by FDA’s evidence-based approval of mifepristone, and we will continue to support the FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs.”

She added, “The stakes of this fight could not be higher in the face of ongoing attacks on women’s health, and we will continue to fight to restore the protections of Roe v. Wade.”

A lawyer for the anti-abortion doctors and medical organizations suing over mifepristone said the court’s action Friday was “standard operating procedure” and urged the justices to allow the appeals court-ordered changes to take effect by the middle of next week.

The type of order issued by the court Friday, an administrative stay, ordinarily is not an indication of what the justices will do going forward. It was signed by Alito because he handles emergency filings from Texas. Alito also is the author of last year’s opinion overturning Roe v. Wade.

The Justice Department and Danco both warned of “regulatory chaos” and harm to women if the high court doesn’t block the lower-court rulings that had the effect of tightening FDA rules under which the drug, mifepristone, can be prescribed and dispensed.

The new limits would have taken effect Saturday if the court hadn’t acted.

“This application concerns unprecedented lower court orders countermanding FDA’s scientific judgment and unleashing regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone,” Solicitor General Elizabeth Prelogar, the Biden administration’s top Supreme Court lawyer, wrote Friday, less than two days after the appellate ruling.

The Biden administration and Danco now want a more lasting order that would keep the current rules in place as long as the legal fight over mifepristone continues. As a fallback, they asked the court to take up the issue, hear arguments and decide by early summer a legal challenge to mifepristone that anti-abortion doctors and medical organizations filed last year.

The court rarely acts so quickly to grant full review of cases before at least one appeals court has thoroughly examined the legal issues involved.

A ruling from the 5th U.S. Circuit Court of Appeals late Wednesday would prevent the pill, used in the most common abortion method, from being mailed or prescribed without an in-person visit to a doctor. It also would withdraw the Food and Drug Administration’s approval of mifepristone for use beyond the seventh week of pregnancy. The FDA says it’s safe through 10 weeks.

Still, the appeals court did not entirely withdraw FDA approval of mifepristone while the fight over it continues. The 5th Circuit narrowed an April 7 ruling by U.S. District Judge Matthew Kacsmaryk, whose far-reaching and virtually unprecedented order would have blocked FDA approval of the pill. He gave the administration a week to appeal.

“To the government’s knowledge, this is the first time any court has abrogated FDA’s conditions on a drug’s approval based on a disagreement with the agency’s judgment about safety — much less done so after those conditions have been in effect for years,” Prelogar wrote.

Erin Hawley, lawyer for the challengers, said in a statement that the FDA has put politics ahead of health concerns in its actions on medication abortion.

“The 5th Circuit rightly required the agency to prioritize women’s health by restoring critical safeguards, and we’ll urge the Supreme Court to keep that accountability in place,” said Hawley, senior counsel with Alliance Defending Freedom, a conservative legal group that also argued to overturn Roe v. Wade.

Mifepristone was approved by the FDA more than two decades ago and is used in combination with a second drug, misoprostol.

Adding to the uncertainty, a separate federal judge in Washington on Thursday clarified his own order from last week to make clear that the FDA is not to do anything that might block mifepristone’s availability in 17 Democrat-led states suing to keep it on the market.

It’s unclear how the FDA can comply with court orders in both cases, a situation that Prelogar described Friday as untenable.

Health and Human Services Secretary Xavier Becerra, in a statement Friday night, said the April 7 ruling out of Texas poses “an existential threat to the FDA’s authority to review and approve a wide range of drugs. If it stands, no medicine approved by the FDA would be safe from these attacks.”

Use of medication abortion jumped significantly after the FDA’s 2016 rule expansion, according to data gathered by the Guttmacher Institute, a research group that supports abortion rights. In 2017, medication abortion accounted for 39% percent of abortions, but by 2020 it had increased to become the most common method, accounting for 53% of all abortions.

Experts have said the use of medication abortion has increased since the court overturned Roe.

When the drug was initially approved, the FDA limited its use to up to seven weeks of pregnancy. It also required three in-person office visits: the first to administer mifepristone, the next to administer the second drug, misoprostol, and the third to address any complications. It also required a doctor’s supervision and a reporting system for any serious consequences of the drug.

If the appeals court’s action stands, those would again be the terms under which mifepristone could be dispensed for now.

At the core of the Texas lawsuit is the allegation that the FDA’s initial approval of mifepristone was flawed because the agency did not adequately review safety risks.

Mifepristone has been used by millions of women over the past 23 years. While less drastic than completely overturning the drug’s approval, the latest ruling still represents a stark challenge to the FDA’s authority overseeing how prescription drugs are used in the U.S. The ruling late Wednesday overturned multiple decisions made by FDA regulators after years of scientific review.

Common side effects with mifepristone include cramping, bleeding, nausea, headache and diarrhea. In rare cases, patients can experience excess bleeding that requires surgery to stop.

Still, in loosening restrictions on mifepristone, FDA regulators cited “exceedingly low rates of serious adverse events.”

More than 5.6 million women in the U.S. had used the drug as of June 2022, according to the FDA. In that period, the agency received 4,200 reports of complications in women, or less than one-tenth of 1% of women who took the drug.

This story includes reporting by Mark Sherman and Jessica Gresko of The Associated Press and by KQED’s Attila Pelit and Azul Dahlstrom-Eckman.