The access of patients in Oregon and elsewhere to a federally approved abortion pill could be on the line this week at a U.S. District Court hearing in Texas.
Oregon’s senior U.S. senator, Democrat Ron Wyden, said during a news conference in southeast Portland on Sunday that Judge Matthew Kacsmaryk, a conservative who’s presiding over a case by an anti-abortion group against the Food and Drug Administration’s approval of the abortion pill, has scheduled a Wednesday hearing in Amarillo, Texas. The hearing has been expected for weeks, though no one knew when it would take place. Abortion rights activists fear the judge, appointed in 2017 by then-President Donald Trump and well known for his anti-abortion views, could order an injunction against the abortion pill.
Citing a Sunday report in the Washington Post, Wyden said Kacsmaryk has taken the unusual step of scheduling the hearing but not publicizing it. The Post said the judge planned to wait until late Tuesday to put it on the docket to avoid protests.
“He’s plotting to sweep his mockery of the rule of law under the rug,” Wyden said. “It is one more step in an anti-democratic takeover of American institutions. Between this moment on a rainy Sunday afternoon here in Portland and Wednesday’s hearing in Texas, we are going to make sure that everybody in America understands just how destructive the solitary judge’s actions would be.”
The news conference, held across from a CVS pharmacy, included Oregon Attorney General Ellen Rosenblum, two Oregon Health & Science University physicians and a representative from Planned Parenthood Columbia Willamette. Several dozen white-coated medical professionals and others, including Multnomah County Commissioner Sharon Meieran, stood behind them holding abortion rights signs.
Rosenblum said they picked CVS as a backdrop because the company has said it will provide the abortion pill to patients. Walgreens announced it will not sell the pill in 21 states with abortion bans, prompting California Gov. Gavin Newsom to declare the state will not renew a multimillion dollar contract with Walgreens.
Rosenblum said Oregon and 22 other Democratic-led states have signed an amicus brief in the Texas case, arguing in favor of the abortion pill, mifepristone.
“We explained all the reasons why the court should reject that challenge, but I’m fearing the worst,” Rosenblum said.
She is leading a legal charge in the Northwest, essentially countering the case. Last month, she and Washington state’s attorney general, Bob Ferguson, filed a suit against the FDA for what they say is excessive regulation of the drug has created barriers to access. Ten other states – Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Rhode Island and Vermont – signed onto the suit, and Rosenblum said Sunday that six more states have joined the case, including Hawaii.
The first hearing in that suit is scheduled for March 28, though Rosenblum said they could ask it to be moved up. The suit also seeks an injunction – to keep the abortion drug on the market. Rosenblum said Sunday that the two cases could lead to competing injunctions, throwing the issue into murky legal territory.
And in Washington D.C., Wyden called on President Joe Biden last month to ignore any injunction against mifepristone.
“I’ve been in public service awhile, and I have never before asked the executive branch of the United States, the president, and the Food and Drug Administration to ignore a ruling,” Wyden said Sunday. “The FDA has the authority and needs to keep this medication on the market.”
Physicians consider medication abortions to be the “gold standard of care,” Rosenblum said, vowing that Oregon would never go backwards. The state has no restriction on abortions and the care is free, along with other reproductive care, though the Oregon Secretary of State’s office said last month that a dozen insurers have failed to comply with the law by charging co-pays, for example.
Pill used in many abortions
If Kacsmaryk orders the FDA to revoke its approval of the pill, mifepristone won’t suddenly disappear from pharmacy shelves and possession and use of the pills will remain legal, Stateline reported.
But if supplies dwindle, many women would be affected. The abortion pill accounted for 60% of the more than 4,000 abortions in Oregon in 2021, Rosenblum said. Nationwide, the pill accounts for more than 50% of abortions, according to the Guttmacher Institute, a nonprofit that follows reproductive rights policies.
Mifepristone works by blocking the hormone progesterone, which is needed for a pregnancy to continue. Another pill, misoprostol, is used to clear out the uterus.
The FDA approved mifepristone in 2000 for use up to seven weeks of pregnancy, later extending that to 10 weeks. Abortion opponents say the FDA did not research the drug enough before approval.
Abortion rights have been on the forefront since last summer when the conservative U.S. Supreme Court overturned Roe v. Wade. That decision triggered abortion bans in states across the country, including in Idaho.
Rosenblum said she and Wyden were in law school in 1973 when a liberal Supreme Court decided Roe v. Wade, guaranteeing abortion rights across the country.
“We never could have imagined we’d find ourselves in the circumstances that we are in today, 50 years later,” Rosenblum said. “Nor could we have imagined we’d be fighting to keep an FDA approved medication on the market that helps provide early and safe and effective access to abortion.”
Planned Parenthood Columbia Willamette has seen a sharp increase in women from Idaho seeking abortions in Bend, where it has a reproductive rights clinic. Kristi Scdoris, communication director for Planned Parenthood Columbia Willamette, told the Capital Chronicle on Sunday that the nonprofit’s new clinic in Ontario, designed to women from Idaho and patients in eastern Oregon who used to go to Boise for care, recently held a “soft opening,” welcoming the first patients. The clinic is expected to open soon.
Last legislative session, in anticipation of the U.S. Supreme Court overturning Roe v. Wade, state Democratic lawmakers approved $15 million to help women in Oregon and elsewhere obtain abortions by paying for travel costs, child care and other expenses associated with care. State lawmakers also held workgroup last year that found that three-quarters of Oregon’s counties don’t have abortion providers, and about 30% of the state’s hospital beds are in Catholic hospitals that are exempt from providing abortions, contraceptives and some other reproductive health care. It concluded the state needs to protect doctors who provide abortions or gender-affirming care from legal action and enhance other reproductive care protections for the LBGTQ community.
This session, legislative Democrats have made reproductive care and rights a priority, rolling out House Bill 2002. It would expand coverage to other services, including facial feminization surgery or laser hair removal for transgender women. It would also require the state Department of Consumer and Business Services to evaluate insurance companies’ compliance with state mandates to cover gender-affirming care and reproductive health care, including abortions.
The bill would protect doctors and other health care providers from losing their licenses or facing other repercussions for providing abortions or gender-affirming care.
Republican lawmakers have filed about a dozen bills as well that mostly try to restrict abortions. With a Democratic majority in the Legislature, they’re not expected to advance.
By Lynne Terry with contributions from Senior Reporter Julia Shumway, both of Oregon Capital Chronicle
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