California鈥檚 Democratic lawmakers have spent the past year in the wake of Roe v. Wade鈥檚 reversal, but a ruling Friday by a Texas federal judge is one thing they can鈥檛 touch.
U.S. District Judge Matthew Kacsmaryk suspended of mifepristone more than 20 years ago, arguing that it was flawed and invalid. Kacsmaryk for seven days to allow the Biden Justice Department to appeal, which . The ruling is likely to pull the drug from pharmacy shelves unless a higher court intervenes while the case moves through the appeal process.
But soon after the ruling in Texas, a district judge in Washington state issued a conflicting ruling , prohibiting the FDA from taking the drug off the market. Despite the confusion caused by these , legal experts say even the threat of a legal gray area is likely to cause providers to stop distributing the drug.
Mifepristone is the first of a two-drug regimen that makes up the majority of abortions in the U.S., according to the Guttmacher Institute, a reproductive health research and policy center. It and is also used to manage miscarriages.
While the last June rescinded federal abortion protections, it left intact states鈥� ability to set their own abortion laws. California legislators and Gov. Gavin Newsom jumped at the chance to make the state , even approving financial assistance for people in other states seeking abortions in California.
But Kacsmaryk鈥檚 ruling addresses the FDA鈥檚 authority nationally, and leaves little room for states to mitigate the fallout.
鈥淲e鈥檙e in uncharted territory,鈥� Lisa Matsubara, an attorney for Planned Parenthood Affiliates of California and vice president of policy, told CalMatters a day after Kacsmaryk heard arguments in the case in mid-March. 鈥淚t will take some time to understand how this will play out in California.鈥�
But Newsom quickly fired back at the ruling. 鈥淭oday鈥檚 ruling, by an extremist judge pursuing a radical political agenda, ignores facts, science, and the law 鈥� putting the health of millions of women and girls at risk,鈥� the governor . 鈥淎bortion is still legal and accessible here in California and we won鈥檛 stand by as fundamental freedoms are stripped away.鈥�
The ruling comes less than a month after the Legislative Women鈥檚 Caucus and Future of Abortion Council announced a building on last session鈥檚 work and primarily focusing on privacy and legal protections for patients and providers. State Sen. , a Democrat from Oakland and chairperson of the caucus, said during a press conference unveiling the legislation that lawmakers were 鈥渘ot done, not by a long shot鈥� in their efforts to preserve abortion rights.
鈥淲e ain鈥檛 gonna roll over,鈥� Skinner said.
Ahead of the district court鈥檚 ruling, 20 Republican-led states threatened retail pharmacies with legal action should they distribute abortion pills. In , Newsom made the sweeping announcement that California would no longer do business with Walgreens, which had announced it would not stock the medication in states where attorneys general were opposed. Newsom has since had to , which ran afoul of federal regulations.
Despite political assurances, the state can鈥檛 take any direct action to keep mifepristone available.
鈥淭here鈥檚 nothing to be done at the state level to make it newly legal so to speak,鈥� said Cat Duffy, a policy analyst specializing in reproductive rights with the National Health Law Program. 鈥淚t鈥檒l be in the hands of the (U.S. Department of Justice) to appeal the ruling.鈥�
Though Kacsmaryk鈥檚 ruling does not entirely revoke the FDA鈥檚 approval of mifepristone, leaving that decision up to a higher court, this type of challenge to the agency鈥檚 authority to regulate pharmaceuticals is unprecedented, Duffy said.
Misoprostol, the second drug used typically in conjunction with mifepristone, remains legal.
Planned Parenthood Affiliates of California CEO Jodi Hicks said in March the organization鈥檚 clinics will move to a misoprostol-only treatment should the district court鈥檚 decision tie their hands. Misoprostol causes contractions and forces the body to empty the uterus. Studies show it is safe and effective when used alone, but there are fewer side effects like prolonged bleeding when used in conjunction with mifepristone, .
Although misoprostol remains available, the inability to use mifepristone stretches an 鈥渁lready strapped network,鈥� Duffy said.
鈥淚t (will) really gut a lot of advances made in improving access that disproportionately impact people in rural areas and the folks that face structural barriers to care like Black and indigenous communities,鈥� Duffy said.
More than half of abortions are completed by medication nationally, . Though California , advocates say COVID-19 pandemic rules allowing abortion medication to be prescribed through telehealth and delivered via mail improved access in rural areas of the state where there are no abortion clinics. Kacsmaryk鈥檚 ruling states, in part, that the FDA inappropriately relaxed in-person prescribing and distribution rules.
Legislation introduced this year by the Women鈥檚 Caucus and Future of Abortion Council primarily focuses on tightening privacy protections for patients and providers.
鈥淲e鈥檙e going to do whatever we can to make sure that folks are protected and that we are really, truly a haven state,鈥� Planned Parenthood attorney Matsubara said. 鈥淎s things come up this year we may have to change course. That鈥檚 certainly what we did last year and we鈥檙e prepared to do that again this year.鈥�
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