Kristen Hwang | CalMatters
In summary: The court decision preserves the FDA’s approval of the abortion pill mifepristone until a lower federal court hears the case. California legislators and officials vow to protect abortion rights no matter the final outcome of the case.
Medication abortion is still legal in California and across the U.S.
A preliminary U.S. Supreme Court order on Friday preserves the U.S. Food and Drug Administration’s two-decade-old approval of the abortion pill mifepristone until the full merits of the case are heard by the high court.
“The U.S. Supreme Court is right to take this action to protect access to medication abortion,” Gov. Gavin Newsom said in a statement. “For now, the Court has followed science, data, and the law rather than an extreme and out of touch political agenda.”
Ahead of the Supreme Court’s highly anticipated decision, California Democratic lawmakers and members of the state’s Future of Abortion Council gathered Tuesday to reaffirm the state’s commitment to protecting abortion rights.
“We want folks to know that we’re here, and we remain steadfast in our determination to respond appropriately,” Newsom said during the press conference.
Backed by Assembly Speaker Anthony Rendon, Senate pro Tempore Toni Atkins, Attorney General Rob Bonta, Legislative Women’s Caucus Chair Sen. Nancy Skinner and other top Democrats, Newsom announced his intention to introduce legislation that would blunt any future legal action in California. Newsom intends to introduce legislation protecting pharmacists who dispense abortion pills and shoring up the state’s supply chain of the drugs but was unable to offer specifics Tuesday.
In a joint statement, Legislative Women’s Caucus leaders Skinner and Assemblymember Cecilia Aguiar-Curry commended the Supreme Court’s stay.
“(Mifepristone) should remain legal and accessible, and we will continue to fight any court action that seeks to cut off access to this proven and safe medication,” the statement said.
The Supreme Court’s one-paragraph order is a positive signal for the FDA and mifepristone manufacturers, Stanford University law professor Henry Greely said. In considering a stay, the court must weigh four different criteria: the likelihood defendants will win an appeal, the likelihood defendants will be irreparably harmed if the stay is denied, the balance of harm caused to others, and the public’s interest.
“To grant a stay you are supposed to find all of the elements,” Greely said.
Greely was one of 20 FDA legal scholars to sign an amicus brief asking the Supreme Court to grant a broad stay of the Fifth Circuit Court of Appeals decision last week to reinstate significant restrictions on the use of mifepristone pending a full court hearing. The order, however, falls far short of indicating what the high court thinks of the case merits, Greely said.
“We know the Supreme Court is not enamored of abortion. This is not a pro-abortion court. That would count in favor of the plaintiffs here, but the conservatives of the court are also concerned about broad overreaching district court opinions,” he said. “But predicting what the Supreme Court will do is about as useful as betting on horses.”
Today’s preliminary order halts a lightning round of conflicting rulings that has played out in the lower courts over the past two weeks, allowing mifepristone to stay on the market unrestricted. The Fifth Court has already scheduled a first hearing for the case on May 17.
In a statement, Attorney General Bonta underscored the state’s commitment to fighting legal challenges to abortion and offered words of encouragement.
“I am hopeful that this decision is an indication that better days are ahead for our country,” Bonta said.
California lawmakers, however, will be hard pressed to prevent the original Texas federal court decision from impacting abortion access and providers in the state if it eventually stands. The Texas court case that precipitated the Supreme Court’s order challenges the authority of the FDA to approve pharmaceutical drugs for market: It’s a challenge that reaches across state lines regardless of party politics.
“The reality is we’re not immune,” Planned Parenthood Affiliates of California President Jodi Hicks said.
The recent court decisions have clearly disrupted California’s carefully laid plans to protect abortion rights, with officials scrambling behind the scenes to prepare and react. The state did not join a separate lawsuit out of the Eastern District of Washington state in which a federal judge ruled mifepristone availability must remain untouched in the 17 Democrat-led states and District of Columbia that were part of the case.
Bonta said Tuesday the state’s decision was “intentional” and “deliberate” to stay in the good graces of the FDA rather than “suing the federal government.”
“We believe there need to be states that collaborate with the federal government,” Bonta said.
Representatives from the Washington state and Oregon attorneys general offices, who are leading the case, declined to confirm whether California was asked to join the lawsuit. Several FDA legal scholars, however, questioned why California did not join the litigation, which seeks to permanently remove “excessively burdensome regulation” that includes additional documentation and certification requirements for doctors and pharmacies to prescribe the drug.
“Much to my chagrin, California and New York are not in that lawsuit. I’m dying to know why,” said Jennifer Olivia, co-director of the UC College of Law, San Francisco consortium of law, science and health policy. “Sometimes a state decides not to join the lawsuit because the risk could be the ruling could make the current situation worse, but there really wasn’t a risk of that happening here.”
“Thank god it’s preserving access while this moves through the courts.” — Dr. Jennifer Kerns, associate professor of obstetrics, gynecology, and reproductive sciences at UC San Francisco
Today’s Supreme Court order also avoids creating a conflict with the Washington state ruling, which for one week ordered the FDA to do the opposite of what the Texas ruling ordered.
Bonta, who has signed briefs defending the FDA in the Texas case, said he believes the “best pathway to defend the FDA’s” authority is through the Texas case.
Olivia, who also signed the FDA legal scholars amicus brief, said the result of the Supreme Court order is the “best-case scenario” for abortion advocates.
Dr. Jennifer Kerns, an associate professor of obstetrics, gynecology, and reproductive sciences at UC San Francisco, said the Supreme Court’s decision to maintain broad access to mifepristone was “a huge relief.”
“I’m shocked, really shocked. All of the different messaging threads that I’m on with people at work, people are speechless,” Kerns said. “Thank god it’s preserving access while this moves through the courts.”
Hours before the decision, patients visiting the clinic for abortion medication expressed worry about what might have happened if they had come in a couple days later, Kerns said. The order gives abortion providers a glimmer of hope, Kerns said, but everyone is still acutely aware of how tenuous abortion access remains.
“We all still think if this makes it up to the Supreme Court, that this is not going to go in our favor, but at least there is enough thought that for now maybe there wasn’t enough legal grounding to support this latest attack on abortion,” Kerns said.
In anticipation of a ruling restricting mifepristone distribution and use, a number of states have also stockpiled the drug to circumvent a law that prevents interstate shipping. But the ruling leaves a gray area about whether pharmacists can dispense pills already on hand. Newsom previously announced a state stockpile of as many as 2 million misoprostol pills with 250,000 doses currently on hand.
Mifepristone, the drug locked in court battles, blocks the pregnancy hormone progesterone, while misoprostol causes the uterus to empty. Misoprostol can be used safely alone to end a pregnancy, but the medical standard of care for the past two decades has been to use both drugs together for both abortions and miscarriages.
The state Legislature is considering more than two dozen abortion bills this session, most of which strengthen privacy protections.
Julia Spiegel, deputy legal affairs secretary for Newsom, said the state intentionally stockpiled misoprostol instead of mifepristone because its legality is not in question. Lawmakers wanted to ensure medication abortion remained accessible “no matter what is happening in the courts” in the event that a rush by other states to purchase misoprostol causes shortages, Spiegel said.
On Tuesday, Newsom told reporters California also has an “ample supply” of mifepristone. A spokesperson later clarified pharmacies across the state have enough mifepristone on hand to meet demand but there is no stockpile.
The state Legislature is considering more than two dozen abortion bills this session, most of which strengthen privacy protections for medical records and abortion providers and prohibit state law enforcement from sharing information with states opposed to abortion. The Future of Abortion Council, a political powerhouse of reproductive rights advocates and lawmakers, is supporting 17 of this session’s bills.
Last year, the Legislature approved 16 abortion bills, including language for a ballot measure enshrining the right to an abortion in the state constitution, which two-thirds of voters passed last November.
CalMatters’ political reporter Alexei Koseff contributed to this story.
