Mills considers stockpiling abortion pills in wake of court rulings

Gov. Janet Mills is considering whether Maine will follow the example of states like Massachusetts and Washington, and stock up on an abortion pill that could be removed from the market as soon as Friday.

The pill, mifepristone, is the first of two used in medication abortion, the most common way to end an unwanted pregnancy. On Friday, a federal judge in Texas put its fate in limbo after ruling that federal authorities improperly fast-tracked its approval. The Biden administration appealed the ruling on Monday, saying it sought a decision by noon Thursday “to enable the government to seek relief in the Supreme Court if necessary.”

Gov. Janet Mills speaks during a news conference about new legislation to protect abortion rights in Maine on Jan. 17. Brianna Soukup/Staff Photographer

Adding to the confusion, a federal judge in Washington issued a ruling on Friday that ordered the U.S. Food and Drug Administration not to overturn the mifepristone approval for the 17 states that had signed on to a competing lawsuit, including Maine.

On Monday, Maine joined a coalition of 24 attorneys general to challenge the Texas ruling, urging the court to stay the ruling pending an appeal. In an amicus brief, the group warns that the ruling endangers lives and tramples states’ authority to protect and promote access to abortion.

“The Texas decision was reckless and yet another fundamental assault on women’s rights,” Mills said. “As the case moves through the courts, my administration is also evaluating options, including procuring mifepristone if needed, to protect access to medication abortion for Maine women.”

Massachusetts has built up about a year’s worth of mifepristone pills, and Washington has stockpiled an estimated three years’ worth. California is taking a different approach, stockpiling about 2 million pills of misoprostol, the second of the two-pill medication abortion regimen.

Misoprostol-only medication abortions are slightly less effective than the two-pill regimen and cause the patient more severe side effects, such as cramping, bleeding and nausea. But they are safely done across the world in countries that do not have access to mifepristone, providers say.

Mifepristone blocks the production of progesterone and stops a pregnancy from continuing. Misoprostol causes the uterus to empty. Misoprostol-only medication abortion has a success rate of 84% to 89% in its first dose, compared to 95% to 99% for the two-drug regimen.

About half of all U.S. abortions are medication abortions, according to Guttmacher Institute, a national abortion research group. It is even more common in Maine, accounting for two-thirds of Maine Family Planning and Planned Parenthood abortions and half of Mabel Wadsworth Center abortions.

The use of medication abortion has steadily increased across the United States over the last 20 years. In 2020, 492,210 of the country’s 930,160 abortions were done this way, Guttmacher data shows. Since its approval, medication abortion has been used over four million times.

Abortion providers in Maine are unsure what the conflicting court rulings mean for their right to offer the two-pill medication abortion after Friday, when the Texas judge’s ruling is due to go into effect. If mifepristone is banned, they can still offer one-pill medication abortion or surgical abortions.

Planned Parenthood of Northern New England, which serves Maine, New Hampshire and Vermont, is not planning to stockpile mifepristone at its clinics because it doesn’t want to reduce the availability of the national supply, said Chief Strategy Impact Officer Nicole Clegg.

Clegg said Planned Parenthood had enough mifepristone on hand to offer medication abortions to its patients, at current demand levels, through the summer, when the U.S. Supreme Court could be called on to settle the discrepancy between the conflicting federal court rulings.

Clegg said providers are conducting risk analysis to determine what to do in a wide range of scenarios. Can mifepristone prescribed before Friday be used if it is banned? What if the federal authorities signal they don’t plan to enforce the Texas ruling? Each new day brings a new round of questions.

“This is a very dynamic situation,” Clegg said Monday during an online news conference.

Providers say they are fielding a lot of calls from confused patients wanting to know what it all means.

“This means nothing will change until, at the earliest, (Friday),” Mabel Wadsworth said in a statement issued Monday. “We don’t know yet exactly how these rulings will impact us. However, it has increased the likelihood that the Supreme Court will be called upon to resolve the conflicting decisions.”

The Texas case was brought by the Alliance Defending Freedom, the same conservative medical group that was behind the Mississippi state abortion law that led the U.S. Supreme Court to overturn Roe v. Wade. Advocates claim ADF decided to file in Texas because it has a medication abortion ban.

The ADF lawsuit alleges the FDA erred when it approved mifepristone for abortion in 2000 through an expedited process that is intended to get medical treatments to ill patients faster. The plaintiffs say this was an improper use of the fast-track approval process because pregnancy is not an illness.

Texas is one of 18 states that has banned medication abortions. Other states allow it, but forbid it to be prescribed through telehealth, which creates a hardship for patients who don’t live near a clinic or can’t afford to travel or take time off from work to get the medication in a clinical setting.

The Texas judge hearing the case, Matthew Kacsmaryk, was appointed by former President Donald Trump. Before that appointment, Kacsmaryk had worked for the First Liberty Institute, a conservative legal group that filed legal challenges intended to restrict abortion access.

Medication abortion can be used up to 11 weeks after a patient’s first day of their last menstrual period.

Although Maine’s clinics charge the same for a typical medication abortion as a surgical one – $500 to $550 – the soft costs are often lower. Some providers approve medication abortions through telehealth appointments and mail the pills so patients do not have to miss work, hire babysitters or pay for travel.

The use of medication abortion has been growing steadily since the FDA approved it in 2000, but local providers say the pandemic-related changes to the healthcare setting and patients’ desire for no-touch medical care led to a dramatic surge in medication abortions in Maine.