Updated April 14 at 4:13 p.m.
Gov. Maura Healey declared midday Monday that a common abortion drug “will remain safe, legal and accessible here in Massachusetts.” But a couple days later, the limits of that vow were already being tested.
Wednesday night’s order from an appeals court will keep the drug, mifepristone, legal across the country, following a Texas judge’s decision last week that would have suspended its FDA approval. But the appeals court will allow years-old restrictions on when and how it can be distributed to women seeking abortions, a decision the Justice Department quickly appealed. In an order Friday, Supreme Court Justice Samuel Alito postponed those restrictions from going into place until Wednesday night at the soonest.
It’s created murky legal territory for providers and patients as they hope for clarity.
The new order will shorten the timeframe mifepristone is approved for, from 10 weeks to 7 weeks of pregnancy; reverse the decision that allowed patients to receive the drug by mail; require multiple in-person visits; and limit which medical professionals are allowed to prescribe the drug. Providers and legal experts here in Massachusetts are closely watching how the Supreme Court will rule.
Elizabeth Barnes said this week has been a “perfect storm nightmare” for women and providers.
Barnes grew up on Martha’s Vineyard and is now president of The Women’s Centers, a group of independent abortion providers in Georgia, Connecticut, New Jersey and Pennsylvania. The New Jersey clinic had just launched their mifepristone-by-mail telemedicine program this week and five patients were scheduled to get the abortion pills.
They saw two of those patients earlier in the week, but mifepristone can no longer be sent through the mail after the new order goes into effect.
The telemedicine director “had to break the news to these patients who were hysterically crying, could not figure out how they would change their planned schedule and call out of work so that they could now come in for services,” Barnes said.
She said the provider was “heartbroken” that they had to turn the patients away so suddenly. They will have to find a clinic to get a surgical abortion — but Barnes notes that clinics in states where abortion is legal are already overburdened with people traveling across state lines to get abortions. Barnes said that Thursday one of the clinics treated a 14-year-old girl who had traveled more than 1,000 miles with her parents to access an abortion.
Many hope that Massachusetts law will legally protect abortion providers and leave some discretion to individuals to use their medical judgment — for example, continuing to prescribe mifepristone after seven weeks. An executive order from Gov. Maura Healey Monday affirmed that a law signed last summer protects providers’ use of mifepristone, and UMass Amherst is stockpiling 15,000 doses of the drug at the governor’s request. But it’s not yet clear how far the law reaches to protect providers from legal liability.
“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,” Healey said in a statement Thursday.
Despite the reassurance from political leaders, providers and legal experts say the conflicting rulings and rapid changes are creating confusion.
“You know, it could be different by the end of the day tomorrow,” said Sarah Burg, an attorney at Foley Hoag who advocates and works pro bono in the reproductive rights world.
For providers, the confusion is disorienting.
“People are scared and honestly very disturbed,” Julia Kehoe, president and CEO of Health Imperatives, which serves low-income populations at clinics in Hyannis, Martha’s Vineyard, Nantucket, Brockton, New Bedford, Plymouth and Wareham, said about their staff.
Barnes said she’s frustrated that so much time has to be spent trying to figure out how conflicting legal opinions impact their day-to-day operations.
“We’re spending hours and hours and hours on the phone and with our staff and our providers, again, trying to pivot around something that has absolutely nothing to do with the practice of medicine or the caring for people,” she said. “It’s the story of being an abortion provider. And I think in many ways it’s by design.”
"We're spending hours and hours and hours on the phone ... and I think in many ways it's by design."
Elizabeth Barnes, president of The Women's Centers
Attorney General Andrea Campbell said Friday that she “urged [the Supreme Court] to reject ... efforts to reinstate outdated and unwarranted restrictions on access to mifepristone.”
The FDA is weighing two conflicting federal rulings. A second ruling out of Washington state, which came down minutes after the original Texas ruling last week, mandates that the FDA preserve existing access to mifepristone in 17 Democratic-led states after that group brought a lawsuit, a group that does not include Massachusetts.
Dr. Danielle Roncari, vice president of medical services at Planned Parenthood League of Massachusetts, called the restrictions “severe” and not based in medicine. She said providers will hopefully be able to rely on new protections in Massachusetts to keep offering mifepristone to patients, regardless of what happens.
“Right now, mifepristone’s approval has not changed and Planned Parenthood League of Massachusetts will continue providing medication abortion care as usual,” Roncari said.
Kehoe has been consulting with legal experts about whether medical staff could count on protections in Massachusetts to offer medication abortion. They plan to start offering medication abortion at their clinics and via telehealth in July with newly awarded funding from the state.
“We’re still looking into that. And we've been in touch with some national organizations who are looking into that exact issue right now. And there may be a possibility, but we just don't know yet,” Kehoe said.
Recent figures suggest that the changes set to go into effect would change how tens or hundreds of thousands of women in the United States get abortions each year.
More than 40% of medication abortions in the United States were at or beyond seven weeks of pregnancy, according to a 2020 federal survey, something that would no longer be approved by the FDA.
Lowering the limit to when a person can take mifepristone to seven weeks rather than 10 weeks is a significant change, Kehoe said, as many women don’t know they are pregnant at that point and are only just starting to consider their options.
“We know that most people come [to the clinics] around or slightly after six weeks, six to nine weeks. Most people don't even know they're pregnant earlier than seven weeks,” she said. “And so this would require people to choose a surgical abortion, even if it's better for them to opt for the medication.”
Prohibiting mifepristone to be sent through the mail would also be a significant barrier for patients, especially in rural areas, Kehoe said. A recent report found that one in 10 abortions nationally were provided by a virtual clinic, via telehealth, in December of last year.
“I’m very concerned about the inability to mail the drugs, especially because we operate clinics in Martha's Vineyard and Nantucket and then in large areas around Plymouth and the south coast where there's not a lot of access, whether it’s transportation barriers or other reasons, where people rely on getting through the mail,” she said. “So this would be a real problem and it would have a disparate impact on low-income people in communities without adequate transportation.”
Update: This story was updated to include the order from Supreme Court Justice Samuel Alito and Attorney General Andrea Campbell’s action on the case.
