Boston Globe | ‘It’s creating enormous chaos’: Legal experts, political leaders blast Texas court ruling that could affect access to abortion pill

By John Hilliard, Ivy Scott and Emma Platoff
Story Originally Appeared in The Boston Globe

Massachusetts political leaders and health advocates pledged an all-out defense of women’s reproductive rights Saturday following an order from a Texas judge Friday that experts warned could threaten access to a commonly used abortion drug, and create a new restriction for a woman’s medical care.

The legal fight over mifepristone, a medication widely used in abortion, includes a separate case in Washington state involving 17 states where a federal judge directed US Food and Drug Administration to take no action limiting access to the drug.

Governor Maura Healey, in a series of Twitter posts Friday and Saturday, pledged that mifepristone would remain available in the state.

Healey is expected to lay out the groundwork at a press conference Monday afternoon for how she plans to continue access to medication abortion, to “ensure supply of mifepristone and protections for providers and patients in Massachusetts,” an administration aide told the Globe on Saturday.

The Healey administration has been preparing for the ruling for weeks, the aide said, and has been in touch with the White House since it was handed down Friday, as well as with advocacy groups and colleagues in other states.

“I want you to know: abortion medication is safe and legal in Massachusetts. And it’s going to stay that way,” Healey wrote on Twitter on Saturday.

Jessie Rossman, managing attorney for the ACLU of Massachusetts, said the group and other advocacy organizations are “using all of the tools that we have available” to help ensure that people can access reproductive care.

“If opponents think that we’re going to stand by and allow access to health care to be blocked, they should think again,” Rossman said.

In his ruling Friday, US District Court Judge Matthew Kacsmaryk overrode the FDA’s scientific evidence supporting the approval of mifepristone in 2000. He said the agency must withdraw approval of the drug while a lawsuit claiming the FDA did not consider all of mifepristone’s safety risks wends its way through the court system.

The federal government has seven days to appeal the order, and Attorney General Merrick Garland has said the Justice Department will defend the FDA’s decision to approve the drug.

At nearly the same time Kacsmaryk issued his ruling, Washington US District Court Judge Thomas Rice ordered that the FDA retain access to the medication in 17 states and Washington, D.C., which had sued to keep the drug available.

Legal experts Saturday said they expect the cases in Texas and Washington to reach the Supreme Court, though it’s not immediately clear what would happen after that. If the FDA was forced to stay its approval for mifepristone while the Texas case plays out, that would not necessarily mean the drug would be removed from use, experts said.

Greer Donley, a professor at the University of Pittsburgh School of Law, said the FDA could issue an enforcement discretion for mifepristone. In that case, the agency would issue a guidance document stating that it will not go after manufacturers and distributors of a drug “if doing so would be contrary to public health,” she said.

“Arguably, the Washington order actually could force the agency to do just that, because it’s the only way for the agency to comply with both orders at one time,” Donley said.

She criticized the Texas ruling for the impact it is having on patients.

“It’s creating enormous chaos, and uncertainty is a really harmful thing when you are talking about a time-sensitive medical procedure,” Donley said.

Massachusetts officials said the battle over the abortion pill has not yet had an effect on health services.

The state codified the right to abortion through the 2020 ROE Act and access to surgical abortion is not under threat, nor is use of misoprostol, the second drug often used in medication abortions, said Rebecca Hart Holder, president of Reproductive Equity Now, a Massachusetts-based advocacy group.

“Everything is on the table with our response, quite frankly,” Hart Holder said.

Donley said that one step Massachusetts leaders could take would be to sign onto the federal case in Washington state. Among the states signed on are Rhode Island, Connecticut, and Vermont.

“Joining that lawsuit would be a prime thing that [Massachusetts] could do,” Donley said.

But a spokesperson for Attorney General Andrea Campbell Saturday said Massachusetts does not need to be a party in the Washington case “because access will ultimately come down to (1) what the Supreme Court does and (2) how we in Massachusetts take action to ensure continued access and support from our own institutions and agencies while the legal fight plays out.”

Campbell’s legal staff will support the Department of Justice in its emergency appeal of the case in Texas, according to the spokesperson.

The conflicting rulings from Texas and Washington come nearly a year after the Supreme Court overturned Roe v. Wade, which held abortion’s legality for almost a half-century. That decision also threw out the court’s 1992 ruling in Planned Parenthood v. Casey, which had upheld the right to an abortion.

Rachel Rebouché, the dean of Temple University’s Beasley School of Law, said in the months since the Supreme Court overturned Roe, conflict over abortion has not been resolved.

“We have two federal courts, not just disagreeing about the FDA’s authority, but fundamentally disagreeing about the facts around a drug’s safety,” Rebouché said.

Experts warned that while Kacsmaryk’s ruling could undercut women’s reproductive care, it could also have far-reaching implications for other health services, including vaccines, contraceptives, and treatments for HIV, or sexually transmitted diseases, according to Elizabeth Sepper, a professor at the University of Texas at Austin’s School of Law.

If Kacsmaryk’s ruling is allowed to stand, it “invites anarchy” because it would also undermine the FDA’s expertise and authority, she said.

“Judges don’t have medical or scientific training,” Sepper said. “And the job of discerning whether, and how, a drug is safe is a process that Congress has set out for the FDA to do — not a single federal district judge.”

The Texas ruling could also create a chilling effect for pharmaceutical companies, according to Glenn Cohen, a health law professor at Harvard Law School. If judges can overturn that regulatory process from the bench, companies may have to weigh whether their efforts are worth that risk, he said.

“That’s a scary prospect for anybody who’s spent millions or more likely billions of dollars trying to bring a drug to approval,” Cohen said.