“As an American, I’m horrified,” Gonzales said, “because if judges can make decisions about drugs that have been utilized for decades based on junk science, and they come off the market, that is a really, really horrible condition.”
California’s response diverges from other liberal states
The Food and Drug Administration first approved mifepristone in 2000. But last fall, a group of anti-abortion physicians called into question the drug’s safety and alleged the agency’s approval of it was wrong. A federal judge in Texas agreed and on April 7 ordered the FDA to suspend availability nationwide. At the same time, a judge in the state of Washington ordered the FDA to preserve the status quo, but that ruling only applied to the 17 Democratic-led states that signed on.
California, notably, was not one of them, a decision the state’s attorney general, Rob Bonta, defended on Tuesday as “intentional,” “deliberate” and “strategic.”
Blue states are dividing and conquering, he said, with some joining the Washington suit, and others like California, New York and Massachusetts pursuing a different path.
“The Washington lawsuit is a suit against the FDA. They are suing the federal government,” he said. “We believe it’s important to have some states, including California, that continue to collaborate, partner and work with the federal government. We are doing that.”
In the meantime, California started to build an emergency stockpile of both abortion medications, with the state receiving 250,000 pills of misoprostol last week, with the ability to obtain another 2 million if needed. Gov. Gavin Newsom even implied the state could “set up shop here” and manufacture the medications under California’s generic drug label, CalRx.
“And don’t think for a second we don’t have more ideas,” Newsom said Tuesday.
The Texas lawsuit is now before the Supreme Court, which has until Friday evening to either extend a stay that maintains availability of mifepristone while the case moves through the court system, or let it expire.
If the justices do tell the FDA to restrict mifepristone, the agency could use its discretion and choose not to invest time or money in enforcing the ruling.
“Not everybody who speeds gets pulled over. Not everybody who smokes marijuana gets arrested. So the FDA could make off-label use of mifepristone a low priority,” UC Davis law professor Mary Ziegler said. From there, “it would depend on the comfort level” of pharmacies, doctors and clinics in California, to decide whether they want to count on the FDA looking the other way or not.
Planned Parenthood’s Northern California clinics won’t defy court orders, Gonzales said, because of the intense political spotlight her organization is under and its continued reliance on federal funding that is routinely under threat. If there is any kind of limit put on mifepristone, for any period of time, she said, they will quickly move to a misoprostol-only protocol until the legal matters are fully resolved.
“For us to be stewing or circling in non-clarity will not serve our patients well,” she said. “It is not a surrendering. It is a radical decision for non-interruption.”
