More than half their patients opt for medication abortion, said Gilda Gonzales, CEO of Planned Parenthood Northern California, which currently involves two medications: mifepristone first, to stop the pregnancy hormone progesterone, and then misoprostol, to cause contractions and empty the uterus.
If the courts had restricted access to mifepristone, the clinics would have relied solely on the second drug, misoprostol.
Gonzales said in a statement on Friday that her organization will continue to use mifepristone but that they would “remain vigilant in monitoring the appeals process.”
“The events of the past several weeks serve as a reminder that reproductive health care is under attack, and opponents will stop at nothing to deteriorate access to care and erode patients’ rights,” she said.
California had started to build an emergency stockpile of hundreds of thousands of abortion medication pills, and Gov. Gavin Newsom floated the idea of California manufacturing more using its generic drug label, CalRx.
Newsom issued a statement on Friday vowing to continue to fight to protect people’s access to abortion care and saying the Supreme Court was “right to take this action to protect access to medication abortion and put a hold on extreme judicial decisions.”
“For now, the Court has followed science, data, and the law rather than an extreme and out of touch political agenda,” he said.
Mary Ziegler, a UC Davis law professor, said the 7 to 2 majority vote signals the court is likely to preserve access to the drug in the long term.
“One reading of this is that the Supreme Court really doesn’t want to have anything more to do with abortion for a while, and they want to just leave things well enough alone and let each state do its own thing,” she said.
But, she said, another reading is that “the Supreme Court just thought this was a case that was too flawed for the court to take entirely seriously, which would mean a better attempt to further limit access to abortion in places like California might need a different response.”
Lower appeals courts to take up abortion pill case
The court’s action Friday almost certainly will leave access to mifepristone unchanged at least into next year as appeals play out, including a potential appeal to the high court.
Justices Samuel Alito, the author of last year’s decision overturning Roe v. Wade, and Clarence Thomas voted to allow restrictions to take effect. No other justices commented.
President Joe Biden praised the high court for keeping mifepristone available while the court fight continues.
“The stakes could not be higher for women across America. I will continue to fight politically-driven attacks on women’s health. But let’s be clear — the American people must continue to use their vote as their voice, and elect a Congress who will pass a law restoring the protections of Roe v. Wade,” Biden said in a statement.
Alliance Defending Freedom, representing abortion opponents challenging the FDA’s approval of mifepristone, downplayed the court’s action.
“As is common practice, the Supreme Court has decided to maintain the status quo that existed prior to our lawsuit while our challenge to the FDA’s illegal approval of chemical abortion drugs and its removal of critical safeguards for those drugs moves forward,” ADF lawyer Erik Baptist said in a statement.
The justices weighed arguments that allowing restrictions contained in lower court rulings to take effect would severely disrupt the availability of mifepristone.
The Supreme Court had initially said it would decide by Wednesday whether the restrictions could take effect while the case continues. A one-sentence order signed by Alito on Wednesday gave the justices two additional days, without explanation.
First abortion case since Supreme Court overturned Roe
The challenge to mifepristone, brought by abortion foes, is the first abortion controversy to reach the nation’s highest court since its conservative majority overturned Roe v. Wade 10 months ago and allowed more than a dozen states to effectively ban abortion outright.
In his majority opinion last June, Alito said one reason for overturning Roe was to remove federal courts from the abortion fight. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he wrote.
But even with their court victory, abortion opponents returned to federal court with a new target: medication abortions, which make up more than half of all abortions in the United States.
Patients seeking to end their pregnancies in the first 10 weeks without more invasive surgical abortion can take mifepristone, along with misoprostol. The FDA has eased the terms of mifepristone’s use over the years, including allowing it to be sent through the mail in states that allow access.
The abortion opponents filed suit in Texas in November, asserting that the FDA’s original approval of mifepristone 23 years ago and subsequent changes were flawed.
They won a ruling on April 7 by U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, revoking FDA approval of mifepristone. The judge gave the Biden administration and Danco Laboratories a week to appeal and seek to keep his ruling on hold.
Responding to a quick appeal, two more Trump appointees on the 5th U.S. Circuit Court of Appeals said the FDA’s original approval would stand for now. But Judges Andrew Oldham and Kurt Engelhardt said most of the rest of Kacsmaryk’s ruling could take effect while the case winds through federal courts.
Their ruling would have effectively nullified changes made by the FDA starting in 2016, including extending from seven to 10 weeks of pregnancy the time when mifepristone can be safely used. The court also would have halted sending the drug in the mail or dispensing it as a generic drug, and patients who seek it would have had to make three in-person visits with a doctor. Patients also might have been required to take a higher dosage of the drug than the FDA says is necessary.
The administration and Danco have said that chaos would ensue if those restrictions were to take effect while the case proceeds. Potentially adding to the confusion, a federal judge in Washington has ordered the FDA to preserve access to mifepristone under the current rules in the 17 Democratic-led states and the District of Columbia that filed a separate lawsuit.
The Biden administration has said the rulings conflict and create an untenable situation for the FDA.
Alito questioned the argument that chaos would result, saying the administration “has not dispelled doubts that it would even obey an unfavorable order in these cases.”
And a new legal wrinkle threatened even more complications. GenBioPro, which makes the generic version of mifepristone, filed a lawsuit Wednesday to preemptively block the FDA from removing its drug from the market, in the event that the Supreme Court doesn’t intervene.
The Supreme Court was only being asked to block the lower-court rulings through the end of the legal case.
The appeals court has sped up its review, but there is no timetable for a ruling.
Any appeal to the Supreme Court would follow within three months of a ruling, but with no deadline for the justices to decide whether to review the case.
