Democratic Governors Brace for Supreme Court Abortion Pill Ruling

A Supreme Court battle over medication abortion threatens to impede reproductive rights services in states led by Democrats, running up against physician shortages and an influx of patients from states where abortion is restricted.

Govs. Gavin Newsom (D-Calif.), Gretchen Whitmer (D-Mich.), and 20 others are urging the Supreme Court to side with the Food and Drug Administration in a challenge to the agency’s safety decisions on mifepristone. The justices are weighing whether to affirm a lower court in blocking the drug from being mailed and prescribed by non-physicians.

Invalidating the FDA’s decisions “would have an enormously disruptive impact on state governance and hamstring Governors’ ability to fulfill their mandate of protecting public health and safety in the reproductive healthcare context and beyond,” the governors said in a brief, filed via their Reproductive Freedom Alliance coalition.

Since the Supreme Court stripped federal abortion rights in 2022’s Dobbs v. Jackson Women’s Health Organization, states have leaned on medication abortion for patients. After Dobbs, states where the procedure is still legal saw nearly 10,000 more abortions per month in the first 12 months after the ruling, according to the brief.

The FDA decisions being challenged “really gave governors a lot more flexibility in how they could ensure that there’s enough medical care available to meet all of the demand in their states,” said Jaime Santos, a Goodwin Procter LLP attorney representing the governors in their brief.

The FDA decisions opened the doors to things such as telemedicine and prescriptions from nurses and others. Rolling them back poses an “untenable” situation, Santos said, meaning things such as more procedural abortions, which could overwhelm the few clinics available for people in dispersed areas. It also poses “an enormous economic impact,” Santos said, as procedural abortion is more expensive, meaning higher state payments through Medicaid or other vehicles.

Rollbacks likewise mean “more people that have to make doctor’s appointments, which means fewer appointments available, which means fewer appointments also available for things like STD and cancer screenings,” Santos said.

State Efforts

Conservatives have a different view of the case.

Stephen Billy, vice president of state affairs for Susan B. Anthony Pro-Life America, said in a statement that the justices are “considering whether safety protocols for in-person doctor visits should be reinstated after the Biden-Harris Administration removed them.”

“Biden removing safety protocols was neither medically based nor in line with statutory requirements, and any governor siding with the Biden FDA is choosing politics and ideology over the health and safety of moms and babies in their states,” Billy said.

Meanwhile, in a failed effort to intervene in the litigation, Idaho, Kansas, and Missouri argued the FDA decisions complicated their abilities to enforce abortion restrictions in their states.

Democratic-led states are already weighing possible courses of action should the Supreme Court restrict mifepristone access.

Maryland Gov. Wes Moore (D) is “exploring options to implement more safeguards” and “will continue to do everything in his power” to keep the state “a safe haven for abortion,” said Carter Elliott, a press secretary. He added that Moore has invested over $15 million this year “to improve abortion access statewide.”

In California, where the state constitution protects abortion access, Gov. Newsom has coordinated with other alliance members on “contingency planning,” including stockpiling of medication abortion doses, said Julia Spiegel, Newsom’s senior adviser for reproductive rights.

Molly Voris, senior policy adviser for Washington Gov. Jay Inslee (D), said the state bought a stockpile of mifepristone around the time US District Court for the Northern District of Texas Judge Matthew Kacsmaryk suspended FDA approval of the drug in April 2023.

Even if the Supreme Court restricts access, Voris said the governor’s office believes the state can still mail stockpiled pills and provide them in-state in ways pursuant to Washington state law.

The stockpile “provides us a little bit of short-term relief,” Voris said. Though the “biggest concern is what happens in the longer term once that supply runs out.”

Massachusetts Gov. Maura Healey (D) likewise issued an executive order confirming state law protected abortion access. She also directed the University of Massachusetts Amherst to stockpile 15,000 doses of mifepristone and provided $1 million to help providers contracted with the Department of Public Health to pay for the medication.

Since “we’re going to continue to dispense mifepristone, I think we’d see more people coming to Massachusetts, more strain on our doctors and systems here,” if the Supreme Court overturns the FDA’s decisions, Healey said in an interview.

Options Limited

States’ options for ensuring mifepristone access should the Supreme Court rule against the FDA may remain limited.

“If the question is can you as a state, supersede FDA rules of the ability of mifepristone, the answer is no,” said Nicholas Bagley, a law professor at the University of Michigan.

“The most important thing the government can do is to put pressure on the Biden administration to make changes” to the safety decisions that the Supreme Court would strike down, Bagley said. That’s because the Fifth Circuit’s basis for cutting them down was that the FDA didn’t adequately explain its decisions.

The Fifth Circuit found FDA decisions on mifepristone made starting in 2016 to expand access to the drug were likely unlawful. The court in its decision noted that the FDA didn’t address safety concerns.

“The Biden administration could take another shot at this” and “try to offer an explanation that would satisfy the courts,” Bagley said.

Doctors routinely prescribe medications “off label,” or for uses not directly indicated on the labeling. Officials from different states, however, said that doing so with mifepristone isn’t a clear-cut case, and could at least partially depend on what the Supreme Court says in its ruling.

Without knowing how exactly the high court is going to rule, it becomes more difficult to plan out options for responding, an adviser to New Mexico Gov. Michelle Lujan Grisham (D) said.

November Elections

Abortion is poised to be a top issue for Democrats come November.

Ballot measures in at least 12 states seek to enshrine abortion protections in state constitutions. Voters in California, Michigan, Ohio, and Vermont previously approved adding reproductive rights language to their constitutions.

“These elections will be critically important for women’s reproductive freedom,” North Carolina Gov. Roy Cooper (D), another member of the alliance, said in an interview.

Cooper, who is not eligible for reelection in 2024, said his state is “an example of what can happen across the country if the plaintiffs are successful with this lawsuit” before the Supreme Court.

Last year, North Carolina’s Republican-controlled legislature voted to override Cooper’s veto of a 12-week abortion ban. Republicans, who framed the measure as a moderate compromise, are likely to be successful at instituting additional restrictions if the party wins control of the governor’s office and the Supreme Court rolls back the FDA’s decisions on mifepristone, Cooper said.

Utah Gov. Spencer Cox (R), who is running for reelection, has highlighted his “commitment to defending Utah’s right-to-life laws,” including a bill he signed into law last year restricting the expansion of abortion clinics in the state.

Cox’s office declined to comment on how a ruling in the mifepristone case would influence any future abortion policy plans.

Despite the uncertainty surrounding the future of mifepristone access, the alliance’s goal remains to “fight back,” Healey said.

“Too many people fought for far too long for reproductive freedom and for access to safe, legal abortion, and we need to do everything we can, and we will, to fight back against the attacks,” Healey said.