As a federal appeals court ruling late Wednesday raised new uncertainties about the availability of medication abortion, state leaders on Thursday emphasized their commitment to abortion rights while providers consulted their lawyers.
Governor Maura Healey declared that her executive order protecting health care providers who offer mifepristone — one of two pills used to end a pregnancy — remains unaffected by the ruling. And Attorney General Andrea Campbell pledged to do everything in her power to ensure that the drug remains available.
Both stressed that right now mifepristone remains available in Massachusetts, and Campbell has set up a hot line to answer questions from patients and providers: 833-309-6301.
“Mifepristone remains safe, legal and accessible in Massachusetts,” Healey said in a statement. “Because of our Executive Order and large purchases of the medication, mifepristone will continue to be available in Massachusetts as it was before the ruling.”
The 15,000 doses of mifepristone that the Healey administration ordered through the University of Massachusetts arrived Thursday, a spokeswoman said.
But the decision by the Fifth Circuit Court of Appeals late Wednesday night raises the possibility of limits on who can prescribe the drug and when. And Massachusetts is not a party to the lawsuit that led to a ruling by a federal judge in Washington state, which protects the status quo in the 17 states that participated in the suit.
The appeals court ruled that the Food and Drug Administration’s approval of mifepristone remains valid, but not its 2016 decision to remove some restrictions. The judges re-imposed those restrictions, ruling that mifepristone can be provided only for pregnancies of seven weeks or shorter, that only physicians can prescribe it, and that it cannot be mailed to patients but rather must be picked up in person.
Despite this, can Massachusetts providers continue to offer the medication to patients who are seven to 10 weeks pregnant, as in the past? The answer appears to be yes — for now.
“Right now, today, at this moment, nothing has changed,” said Rachel Rebouché, dean of the James E. Beasley School of Law at Temple University and a scholar of reproductive health law. Providers face little risk in continuing to prescribe mifepristone as in the past, she said.
But things can change depending on decisions by the Supreme Court and the FDA. “This is a fast-moving situation,” Rebouché said.
Dr. Katharine O’Connell White, an obstetrician-gynecologist at Boston Medical Center, said her hospital’s attorney has determined that doctors still have the authority to prescribe the pills for pregnancies longer than seven weeks “per accepted medical practice and appropriate judgment.” As for whether nurse practitioners and physician assistants may continue to prescribe, the hospital is waiting for guidance from those professions’ licensing boards.
The governor’s executive order “would seem to allow us to continue to practice the good evidence-based medicine we used to practice yesterday,” said White, who is associate director of the hospital’s fellowship in complex family planning. “It’s possible that in Massachusetts nothing will change.”
Dr. Danielle Roncari, director of family planning at Tufts Medical Center and Planned Parenthood League of Massachusetts’ vice president of medical services, agreed that Wednesday’s ruling would probably not change anything in Massachusetts.
“It’s obviously very new and we haven’t heard much legal analysis,” she noted.
But Roncari said she would still prescribe mifepristone to a woman who sought an abortion at seven to 11 weeks gestation. She said “a significant number” of women obtain medication abortion at that stage of pregnancy.
Healey’s executive order and mifepristone purchase provide as much protection as the state government possibly can, said I. Glenn Cohen, a Harvard law professor who specializes in health law and bioethics. “She is doing all the things in her power to protect Massachusetts citizens,” he said.
The state, not the federal government, regulates the practice of medicine. Healey has ordered that state licensing authorities will not go after a clinician who appropriately prescribes mifepristone for an abortion, even if the prescription violates the court order. Additionally, by getting 15,000 doses of mifepristone into the state by Thursday, Healey has ensured that, at least as long as that supply lasts, the state won’t run afoul of any restrictions on interstate commerce.
“Those are all positive steps, and incomplete solutions,” Cohen said.
There are limits to the state’s authority, he said. The FDA regulates the production, promotion, and interstate movement of drugs — and it remains unclear what steps the FDA will take. If the FDA announced that it would not enforce the court ruling, then Massachusetts doctors would be “maximally protected,” Cohen said.
But if the FDA does enforce it, Massachusetts would be vulnerable, said David S. Cohen, professor of law at the Drexel University Thomas R. Kline School of Law. The FDA requires drug companies to make sure providers are following the rules, David Cohen said. But for the 17 states and the District of Columbia, a federal judge in Washington state has ordered the FDA to maintain the status quo with mifepristone.
Asked why the state did not join the suit, a spokeswoman for the attorney general said the state does not need to be party to it to ensure access to mifepristone. Massachusetts already has a strong shield law protecting abortion providers and patients, the spokeswoman said.
Another ambiguity surrounds the Fifth Circuit’s decision to prohibit the mailing of mifepristone, as the state does not have oversight over the mail service. Roncari said providers have been offering medication abortion via telehealth and mailing the medication, “but not to a large degree in Massachusetts.”
Telehealth, she said, is “definitely a more complicated issue.”
If the Fifth Circuit ruling is upheld, the mailing of mifepristone would be prohibited both within the state as well as across state lines, said Rebouché, the Temple law school dean.
Additionally, said Harvard’s Glenn Cohen, “There will be questions about people traveling from other states to Massachusetts. Can the home state seek to enforce it against them?”
“All of these are very uncharted waters,” Cohen said.