Medication abortion is still legal in California and across the U.S.
A preliminary U.S. Supreme Court order today preserves the U.S. Food and Drug Administration’s two-decade-old approval of the abortion pill mifepristone until a lower federal court hears the full merits of the case.
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,” Gov. Gavin 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.
Temporarily halting a lightning round of conflicting rulings that has played out in the lower courts over the past two weeks, today’s order allows mifepristone to stay on the market unrestricted.
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 U.S. Food and Drug Administration 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.
California Attorney General 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.”
Olivia was one of 20 FDA legal scholars to sign an amicus brief submitted to the Supreme Court asking for the court to grant a broad stay of the Fifth Circuit Court of Appeals decision to reinstate significant restrictions on the use of mifepristone pending a full court hearing.
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.
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.
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.