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Healey, in bid to ‘ride out’ legal challenge, moves to stockpile 15,000 mifepristone doses in Massachusetts

Healey issues executive order on abortion
Healey issues executive order on abortion, announces Mass. will receive year’s worth of mifepristone doses

Governor Maura Healey revealed Monday that the state took preemptive steps to bolster its mifepristone stockpile, putting in an order last week for 15,000 doses — close to two years’ worth — before a Texas judge’s decision Friday to invalidate the abortion medication.

Healey on Monday also issued an executive order that, in part, seeks to clarify that medical abortion and mifepristone are covered by a state law passed last year that helps shield providers from out-of-state prosecution. The moves are an attempt to ease concerns of both providers and patients amid a flurry of legal maneuvering, said Healey, who promised that medication abortion “will remain safe, legal, and accessible here in the Commonwealth.”

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“Nothing has changed, and nothing is going to change,” the Cambridge Democrat said outside the State House while flanked by Senator Elizabeth Warren, US Representative Ayanna Pressley, legislative leaders, and others who cheered the executive actions.

“We’re going to make sure we stay the course here in Massachusetts, and ride this out,” Healey said. “If you come here to mess with our rights or our freedoms, we’re going to take you on.”

The developments came three days after a Texas judge ruled that the US Food and Drug Administration should not have authorized mifepristone more than two decades ago.

While swift, Monday’s state-level actions and accompanying promises to fight may ultimately have limited reach in a landscape being reshaped by unprecedented court decisions. The case could also ultimately land in a Supreme Court that last year eliminated the constitutional right to an abortion.

US District Judge Matthew J. Kacsmaryk, an appointee of former president Donald Trump, issued a preliminary injunction Friday that could end the production and distribution of mifepristone, which is used as part of a two-drug regimen to terminate a pregnancy within the first 10 weeks.

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Kacsmaryk set his ruling’s effective date for Friday to give the Biden administration an opportunity to appeal. The Department of Justice on Monday appealed the ruling.

Even if mifepristone is ultimately banned, it will still be possible to perform medication abortions with the other drug, misoprostol, alone. But using misoprostol alone is less effective, with a 15 percent failure rate, and it also causes more bleeding and cramps.

But adding confusion was a separate Friday ruling from a federal judge in Washington state that effectively ran directly counter to 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.

The decision to stockpile mifepristone now is a “savvy” move, said I. Glenn Cohen, a Harvard Law School professor and expert on FDA law, and could help Massachusetts overcome one possible hurdle: a shutdown of manufacturing of the drug if the FDA is forced to withdraw approval.

But, Cohen said, the Healey administration’s actions cannot fully insulate the state from the potential consequences of federal rulings on mifepristone.

“Massachusetts, as a state, has limited power,” he said. There’s also another potential hurdle of how to administer the drug should it no longer be FDA-approved. “There’s a question of whether physicians would be comfortable prescribing it if it’s an unapproved drug.”

The Healey administration may be able to work around that issue, though. Rachel Rebouché, a Temple Law School professor who has written extensively about medication abortion access, said the state could assure physicians that they would not be penalized for prescribing mifepristone.

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“It’s the state that governs what is the lawful practice of medicine” within its borders, Rebouché said.

On Monday, Healey and others sidestepped questions of how the state would, or could, respond should the medication lose its FDA approval, instead casting the ruling as a vehicle to push a conservative political agenda.

Warren called the Texas decision an attempt at “undoing decades of precedent to try to end access to abortion everywhere,” while Pressley labeled Kacsmaryk an “extreme white supremacist judge.”

“There are several steps, and hurdles, that people have to jump over in order to get to a place where this is not available,” Attorney General Andrea Joy Campbell said of mifepristone. “We’re going to fight every step of the way.”

Healey also brushed off the question about facing litigation at some point for dispensing mifepristone. “I am not the least bit concerned about liability,” she said.

Before the ruling, Healey aides said University of Massachusetts Amherst officials last week placed an order, at Healey’s request, for 15,000 doses of mifepristone. The shipment is expected to arrive this week, according to her administration.

UMass Amherst announced last year that it would begin prescribing medication abortion at its University Health Services starting last fall. John Hoey, a spokesman for UMass president Marty Meehan, said the university already had approval to purchase mifepristone, making it a natural conduit to place the bulk order for 15,000 doses.

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“We were able to mobilize within 24 hours,” said UMass Amherst chancellor Kumble Subbaswamy. “This is unheard [of] for government circles, I would say.”

The order cost roughly $675,000, according to Healey’s office, and the state intends to reimburse UMass for the purchase. The Department of Public Health is also dedicating $1 million from its current budget to help state-contracted providers purchase mifepristone.

There were roughly 8,300 medication abortions in Massachusetts in 2021, according to state data. At that rate, the 15,000 doses announced by Healey could last close to two years. But Healey aides said the supply might not last that long if demand surges, including from those in other states.

Beyond beefing up the state’s supply, Healey is also seeking to clarify a law passed last year to broaden access to abortion in Massachusetts in the wake of the Supreme Court’s decision to overturn Roe v. Wade.

The 2022 law seeks to help shield Massachusetts providers from out-of-state prosecution for procedures that are legal here, such as abortions and gender-affirming care.

Healey’s order, aides said, is an attempt to confirm that it also covers medical abortion.

Her actions drew quick condemnation from abortion opponents. Myrna Maloney Flynn, president of Massachusetts Citizens for Life, said mifepristone “has one singular purpose: to end the life of a human being.”

“So what Governor Healey did last week was to order not 15,000 ‘doses,’ but 15,000 deaths,” she said.

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The Texas ruling has already set off a scramble among healthcare providers in Massachusetts, and elsewhere, with some preparing contingencies that include stockpiling mifepristone and making plans for a possible increase in surgical abortions.

But the conflicting federal rulings also complicate what could happen next.

Rebecca Hart Holder, president of Reproductive Equity Now, a Massachusetts-based advocacy group, said that should the Texas and Washington cases reach the nation’s highest court, she has “zero confidence” that the Supreme Court will “come down on the side of abortion rights”

Or “more importantly,” she said, “on the side of the FDA keeping its congressionally authorized regulatory authority.”

Travis Andersen, Samantha J. Gross, and Zeina Mohammed of the Globe Staff contributed to this report.


Matt Stout can be reached at matt.stout@globe.com. Follow him @mattpstout. Mike Damiano can be reached at mike.damiano@globe.com.