LYNN LA • APRIL 14, 2023
From CalMatters’ health reporter Kristen Hwang:
Doctors and patients in California can rest assured that the abortion pill mifepristone is legal to prescribe and take — for now.
Late Wednesday, the Fifth Circuit Court of Appeals overturned the most significant part of U.S. District Judge Matthew Kacsmaryk’s ruling last week out of Texas that the FDA’s approval of the drug more than two decades ago was “arbitrary and capricious.”
The appellate court’s ruling offers some clarity and security for abortion providers who were hit with a bewildering same-day ruling out of Washington state from a federal judge ordering the FDA to make no changes to the availability of mifepristone in the 17 Democratic-led states in the case. California wasn’t among them. Asked why, a spokesperson for Attorney General Rob Bonta refused to be identified and said they were “unable to comment on legal strategy.”
The Fifth Circuit ruling means that the drug can stay on the market across the country until the full case is heard before the U.S. Supreme Court. The panel of judges however upheld the portion of Kacsmaryk’s decision prohibiting sending the drug to patients by mail and allowing providers other than doctors, like physician assistants and nurse practitioners, to prescribe the medication. The Biden administration quickly filed an emergency appeal to the Supreme Court.
Mifepristone is part of a two-drug regimen commonly used in abortions and miscarriage management. It blocks the hormone progesterone needed to carry a pregnancy to term. The second pill, misoprostol, empties the uterus and has not been challenged in court.
Earlier this week, in an effort to uphold California’s position as an “abortion safe haven,” Gov. Gavin Newsom announced a state stockpile of 2 million misoprostol pills. Julia Spiegel, deputy legal affairs secretary for Newsom, told CalMatters the state intentionally chose to stockpile misoprostol over mifepristone because its legality is not in question. Amid fears of a nationwide ban, other states, including Washington and Massachusetts, stockpiled mifepristone.
- Spiegel: “In this immediate moment of chaos and fear and confusion, California and Gov. Newsom wanted to send a very clear message that you can (get a medication abortion) here legally and safely…no matter what is happening in the courts.”
The state has about 250,000 pills on hand — enough for nearly 12,000 medication abortions — and will make them available to providers for free. The California State Board of Pharmacy issued an alert Wednesday clarifying that pharmacists can continue to hand out mifepristone and cannot obstruct someone from “obtaining a prescription drug” that has been ordered for them.
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