After Texas Ruling, Democratic States Move to Stockpile Abortion Pills

The governor of Massachusetts has asked the University of Massachusetts to purchase a one-year supply of the abortion pill mifepristone, and issued an executive order shielding pharmacists who stock the drug, abortion providers and patients from criminal and civil liability.

Washington state is using its Department of Corrections and the University of Washington to stockpile a four-year supply of the drug, and has fast-tracked legislation allowing health care providers to distribute it.

Officials in Maine, where at least 70% of abortions are done using pills, and in Maryland said this week that they were exploring purchasing additional doses of mifepristone.

Since a federal judge in Texas last week invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone, states led by Democrats have been scrambling to adjust to a possible future without it.

The judge’s decision could affect access to the pill in all states, even where Democrats and voters have acted to secure abortion rights.

The pill is the first in a two-drug medication regimen used in over half of abortions in the United States. A second pill, misoprostol, can be used alone but is not as effective as both drugs together.

The judge, Matthew J. Kacsmaryk, put his ruling on hold for a week to allow time for appeals; the Justice Department appealed the ruling Monday. A separate ruling by a federal judge in Washington state hours after the Texas ruling directly contradicted the Texas judge and ordered the FDA to make no changes to the availability of the drug in the states involved in that suit. Many expect the dispute to head to the Supreme Court.

In the interim, states are trying to figure out how to prepare for different scenarios in a fast-changing legal landscape.

Some states are looking to misoprostol, the second drug in the two-drug regimen, which was not covered in the Texas judge’s preliminary ruling.

In California, Gov. Gavin Newsom announced Monday that the state had purchased an “emergency stockpile” of 250,000 pills of misoprostol and negotiated the purchase of up to 2 million.

Newsom opted to focus on misoprostol instead of mifepristone so that “people across California and the country know medication abortion will remain accessible and affordable — regardless of what happens in the court — without disruption,” said Brandon Richards, a spokesperson for the governor.

On Tuesday, Gov. Kathy Hochul of New York announced that the state Health Department would immediately begin purchasing 150,000 doses of misoprostol, or a five-year supply.

If the Texas ruling stands, Hochul said that New York would dedicate up to $20 million more for reproductive health, on top of the $35 million that has already been dedicated. She also said she was in talks with legislators about requiring private insurance to cover medication abortion when it is prescribed off label.

“We’ll always protect access to reproductive health care and all individual rights here in New York,” she said during a Planned Parenthood of Greater New York news conference.

Some in favor of abortion rights worry that moves to stock up on misoprostol in lieu of mifepristone is a hedge that could have unintended consequences. Mary Ziegler, a law professor and historian of abortion at the University of California, Davis, said such decisions might unintentionally signal that the mifepristone should not be used in medication abortions.

“I think they’re looking at this and thinking, ‘I don’t know who is going to be in the White House in 2024, we can’t rely on the FDA’,” she said of states considering the option. “It’s premature to do that and it might frighten people unnecessarily. We’re in a climate where a lot of people don’t know what the law is.”

The legal confusion has also made some states hesitate in making concrete plans, though some Democratic leaders said they expected more states to focus on securing access to pills.

“I am confident, too, in speaking with other governors around the country, that you will see more and more states step up,” said Gov. Maura Healey of Massachusetts at a news conference Monday, with Sen. Elizabeth Warren and others by her side. “The battle to ban abortions has been fought in the states. The battle to win reproductive freedom and women’s right to an abortion will be won in the states, and that’s what you see happening here.”

In an interview, Healey said that the state had been discussing, for several weeks, how to structure a purchase order and who the appropriate purchasing agent would be.

In order to purchase and distribute the drug, Washington state needed to use a state-run agency with a pharmacy license, said Gov. Jay Inslee in an interview last week.

Jaime Smith, a spokesperson for Inslee, said the sale and distribution of mifepristone in Washington would not be affected by the Texas case.

“Our state law regarding distribution of prescribed medication does not require FDA approval,” she said.

Some states, such as Pennsylvania, have been publicizing information about abortion medication still being legal and available. In Connecticut, William Tong, the attorney general, said he had been talking to pharmacy chains to remind them the drug was still legal in their state.

In Illinois, Don Harmon, the Senate president, called the ruling in Texas “disappointing but not all surprising” and pointed to legislation protecting abortion rights that was signed into law in January.

“We saw this coming in Illinois and enacted legislation protecting access to a wide suite of reproductive health care so that women can continue to make their own decisions about their bodies,” he said.

Earlier this year, Illinois Gov. JB Pritzker signed a law protecting abortion providers and out-of-state patients from prosecution. The law also requires health insurers to provide coverage of medication abortions.

“As the legal landscape changes, we will be doing everything possible to make sure that mifepristone is available in Illinois and covered by insurance,” said Olivia Kuncio, a spokesperson for Pritzker. “However, no matter the results of that ruling, misoprostol — not the gold standard for medication abortions, but still an option — will remain an option for medication abortions, and insurance and Medicaid will continue to cover that drug.”

This week, a group of local governments joined an amicus brief filed by the Public Rights Project, a civil rights nonprofit, in support of the Biden administration’s request for an emergency stay of Kacsmaryk’s ruling. The parties include Houston; Cincinnati; Tucson, Arizona; Milwaukee County; and Bucks County, Pennsylvania.

This article originally appeared in The New York Times .