Alarmed by a court ruling Friday invalidating a popular abortion medication, providers in Massachusetts are preparing contingencies that include stockpiling the drug, mifepristone; switching to solely using a companion medicine that is less effective; and making plans for a possible increase in surgical abortions.
Reproductive health advocates also warned that the decision by US District Judge Matthew J. Kacsmaryk of Texas could have far-reaching consequences beyond access to abortion, affecting patients who use mifepristone for other purposes and threatening the availability of contraceptive and gender-affirming treatments.
Kacsmaryk ruled that the Food and Drug Administration should not have authorized mifepristone, more than 22 years after it was first approved and hit the market. However, he stayed his ruling until Friday to give the Biden administration an opportunity to appeal.
Still, many warned that even the uncertainty over what will happen next is a hazard, as women may avoid care out of fear.
“We need to be very clear-eyed about how devastating this decision could be if it is upheld by the highest” court, said Rebecca Hart Holder, president of Reproductive Equity Now, a Massachusetts-based advocacy group.
Adding to the uncertainty and confusion was a separate ruling that also came down Friday night, from a federal judge in Washington state, that effectively was the opposite of Kacsmaryk’s. In that case, Judge Thomas O. Rice directed the FDA to keep mifepristone available in the 17 states and Washington, D.C., that brought a suit seeking greater access to the medicine.
Hart Holder said that the Texas judge’s invocation of the 1873 Comstock Act, which at one time forbade the US Postal Service from delivering medication for abortion, opens up the possibility of restricting access to a slew of reproductive and gender-affirming medications, including contraceptives and the other drug used in medication abortion, misoprostol.
Additionally, she added, mifepristone is used for more than just abortions. If it becomes unavailable, patients who rely on mifepristone to manage Cushing syndrome, a condition in which the body produces too much of the hormone cortisol, will no longer have access to that treatment.
Governor Maura Healey reiterated Saturday that her administration will do all it can to ensure abortion medications remain available in Massachusetts. She is expected to announce a plan on Monday to preserve the supply of mifepristone in the state, as well as measures to protect providers who administer it.
Mifepristone, which blocks a hormone needed for pregnancy to continue, is the first of two drugs typically used for a medical abortion. The second drug, misoprostol, induces uterine contractions and softens the cervix. Misoprostol is so far unaffected by the Texas ruling, and it’s possible to induce an abortion with misoprostol alone.
But using misoprostol alone is less effective, with a 15 percent failure rate, and it also causes more bleeding and cramps.
If only misoprostol is available for medication abortions, a heavier burden will fall on lower-income women, said Dr. Danielle Roncari, vice president of Medical Services at Planned Parenthood League of Massachusetts and the director of Family Planning at Tufts Medical Center.
A medication abortion using misoprostol alone can take up to 14 hours, compared with two hours for the combination treatment, she said.
“It will be more difficult for patients who don’t have child care support, or who can’t take time off from work if they need it,” Roncari said.
Also, women using the one-drug abortion method may need a follow-up procedure known as dilation and curettage, or D&C, to help remove remaining tissue. And that would also require women to have child care and time off from work.
“It’s always the same people that are the biggest losers,” said Dr. Lolly Delli-Bovi, an obstetrician-gynecologist and medical director at Women’s Health Services, a reproductive health facility in Brookline. Low-income patients, minors, single mothers, immigrants, non-English speaking people, and women with mental health problems, substance use problems, or disabilities will all have greater difficulty obtaining abortions, she said.
If mifepristone becomes unavailable, Delli-Bovi said, she would probably recommend that patients undergo surgical abortion, because the troubling symptoms and risk of failure are greater for misoprostol alone. Her clinic most likely can accommodate the added volume, she said.
For now, the Brookline clinic has a stockpile of mifepristone and will continue to provide it for as long as possible, Delli-Bovi said.
Planned Parenthood, anticipating the Texas ruling, had ordered extra supplies of mifepristone, but the group doesn’t know if it will be able to obtain them, Roncari said.
And, it’s not clear whether, if the Texas ruling is upheld, it would still be legal to provide the drug from such stockpiles.
Although abortions are clearly legal under Massachusetts law, Hart Holder, of Reproductive Equity Now, cautioned that federal decisions can supersede those protections.
“The state can and should be aggressive in how it is protecting abortion, especially in the face of an anti-democratic process in what to me feels like a rigged judicial system,” Hart Holder said.
Andrea Miller, president of the National Institute for Reproductive Health, said states can do a lot to help preserve abortion access.
She urged states supporting abortion rights to invest in organizations that help people obtain abortions, make clear that abortion is still available, cut off support for “crisis pregnancy centers” that try to persuade women not to have an abortion, and declare that the state will not participate in legal actions against anyone providing, seeking, or helping others obtain abortion care.
Advocates were troubled by the language used in the ruling and what they described as a distortion of the facts.
Hart Holder said that Kacsmaryk “tipped his hand” by using the phrase “unborn human,” a term that antiabortion groups use for the fetus.
Miller called the ruling “a pure antiabortion screed.”
“It’s filled with stigmatizing and inaccurate and inflammatory language, rife with medical inaccuracies and false statements, and it turns federal jurisprudence on its head, upside down, and sideways,” she said. The ruling overlooks the vast and deep research demonstrating the safety and effectiveness of the drug and, in describing its risks, “cherry picks one or two claims out of millions of experiences,” Miller said.
“It truly turns reality on its head,” she said.
She added that this is not a time to panic. “It’s really important for people not to lose hope because it is so clear that the vast majority of people in this country, the vast vast majority in the Commonwealth, truly believe it should be not only legal but accessible, available without stigma and shame,” she said.
Anna Kuchment and Emma Platoff of the Globe staff contributed to this report.
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