By Kristen Hwang. CalMatters. Bay City News.
Medical abortion remains legal in California and throughout the US.
A preliminary injunction by the U.S. Supreme Court on Friday preserves the U.S. Food and Drug Administration's approval of the abortion pill mifepristone two decades ago until the high court hears the full merits of the case.
“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 Abortion Future Council met Tuesday to reaffirm the state's commitment to protecting abortion rights.
"We want people to know that we are here and we remain steadfast in our resolve to respond appropriately," Newsom said during the news conference.
Backed by Assembly Speaker Anthony Rendon, Sen. Pro Tem 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 mitigate any future legal action in California.
Newsom intends to introduce legislation to protect pharmacists who dispense abortion pills and strengthen the state's drug supply chain, but he could not offer details Tuesday.
In a joint statement, Legislative Women's Caucus Leaders Skinner and Assemblywoman Cecilia Aguiar-Curry praised the Supreme Court's stay.
“Mifepristone must remain legal and accessible, and we will continue to fight any legal 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 makers, said Henry Greely, a law professor at Stanford University. In considering a stay, the court must weigh four different criteria: the likelihood that defendants will win an appeal, the likelihood that defendants will suffer irreparable harm if the stay is denied, the balance of harm caused to others and the public interest.
"To grant a stay, you're supposed to find all the elements," Greely explained.
Greely was one of 20 FDA lawyers who signed 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 mifepristone use pending a full court hearing. The order, however, falls far short of indicating what the high court thinks about the merits of the case, Greely noted.
“We know the Supreme Court is not enamored of abortion. This is not a pro-choice court. That would count in favor of the plaintiffs here, but the court’s conservatives are also concerned about the district court’s broad overreaching opinions,” he said. “But predicting what the Supreme Court will do is about as useful as betting on horses.”
Friday's preliminary injunction halts a lightning round of conflicting rulings that has played out in lower courts over the past two weeks, allowing mifepristone to remain on the market without restrictions. The Fifth District Court has already scheduled a first hearing in the case for 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 hope that this decision is an indication that better days are ahead for our country," Bonta said.
California lawmakers, however, will have a difficult time preventing the original Texas federal court decision from affecting abortion access and providers in the state if it ultimately stands. The Texas court case that precipitated the Supreme Court order challenges the FDA’s authority to approve pharmaceutical drugs for the market — a challenge that transcends state lines, regardless of partisan politics.
"The reality is we are not immune," said Planned Parenthood Affiliates of California President Jodi Hicks.
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 by the Eastern District of Washington state in which a federal judge ruled that the availability of mifepristone should remain untouched in the 17 Democratic-led states and the District of Columbia that were part of the case.
Bonta said Tuesday that the state's decision was "intentional" and "deliberate" to stay in the FDA's good graces rather than "sue the federal government."
"We believe that there should be states that cooperate with the federal government," Bonta said.
Representatives from the Washington and Oregon attorneys general offices, which are leading the case, declined to confirm whether California was asked to join the suit. However, several FDA legal scholars questioned why California did not join the litigation, which seeks to permanently eliminate the “overly burdensome regulation” that includes additional paperwork and certification requirements for doctors and pharmacies to prescribe the drug.
“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 health law, science and policy consortium at UC San Francisco School of Law. “Sometimes a state decides not to join the lawsuit because the risk might be that the ruling would make the current situation worse, but there really wasn’t a risk of that happening here.”
The Supreme Court's order Friday also avoids creating a conflict with the Washington state ruling, which for a week ordered the FDA to do the opposite of what the Texas ruling mandated.
Bonta, who has signed briefs defending the FDA in the Texas case, said he believes the “best path to defend the FDA’s authority” is through the Texas case.
Olivia, who also signed the FDA legal scholars’ amicus brief, said the outcome 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 uphold broad access to mifepristone was "a huge relief."
“I’m shocked, really shocked. All the different message threads I’m on with people at work, people are speechless,” Kerns said. “Thank God he’s preserving access while this moves through the courts.”
Hours before the decision, patients who visited the clinic for abortion medications expressed concern about what might have happened if they had come a couple of days later, Kerns said. The order gives abortion providers a glimmer of hope, Kerns noted, but everyone is still acutely aware of how tenuous abortion access remains.
"We all still think that if this goes to the Supreme Court, it won't go in our favor, but at least there's enough thought that, for now, there may not be enough legal basis to support this latest attack on abortion," Kerns added.
In anticipation of a ruling restricting the distribution and use of mifepristone, several states have also stockpiled the drug to circumvent a law that prevents interstate shipment. But the ruling leaves a gray area over whether pharmacists can dispense pills that are already on hand. Newsom previously announced a state stockpile of up to 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 safely used alone to end a pregnancy, but the medical standard of care for the past two decades has been to use both drugs together for abortions and miscarriages.
Julia Spiegel, Newsom’s deputy legal secretary, said the state intentionally stockpiled misoprostol instead of mifepristone because its legality is not in question. Lawmakers wanted to ensure that medication abortion would remain accessible “no matter what happens in the courts” in case other states’ rush to buy misoprostol leads to shortages, Spiegel said.
On Tuesday, Newsom told reporters that California also has an “ample supply” of mifepristone. A spokesperson later clarified that pharmacies across the state have enough mifepristone on hand to meet demand, but there are no stockpiles.
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 that oppose abortion. The Future of Abortion Council, a political powerhouse of reproductive rights advocates and lawmakers, supports 17 of this session’s bills.
Last year, the Legislature passed 16 abortion bills, including language for a ballot measure enshrining abortion rights in the state constitution, which two-thirds of voters approved last November.
CalMatters political reporter Alexei Koseff contributed to this story.
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