Hobbs joins Dem governors in asking SCOTUS to reject anti-abortion bid to limit mifepristone
With the U.S. Supreme Court set to hear arguments on the future of access to a safe and popular abortion drug, Gov. Katie Hobbs joined nearly two dozen other Democratic governors in urging the justices to keep the medication’s availability intact, warning that restrictions would result in public health emergencies.
Earlier this week, the high court announced it would hear a case brought by anti-abortion legal firm Alliance Defending Freedom on March 26. The Scottsdale-based organization, representing a coalition of anti-abortion doctors espousing alarmist and evidence-free claims, is aiming to convince the Supreme court that the FDA approval of mifepristone should be returned back to the regimen that existed prior to 2016, when the federal agency began making changes to how the drug could be prescribed.
Those changes included allowing the medication to be prescribed via telehealth and be mailed to patients, recommending its use up to 10 weeks of gestation instead of just seven, and expanding who can prescribe the drug beyond only doctors.
On Tuesday, 22 Democratic governors, including Hobbs, filed an amicus brief with the U.S. Supreme Court advocating for the preservation of mifepristone’s current FDA approval, saying that returning to pre-2016 dosage and prescription guidelines would be detrimental for their constituents. The Democratic governors form the Reproductive Freedom Alliance, an interstate gubernatorial alliance led by California Gov. Gavin Newsom created last year with the mission of defending abortion and reproductive health access.
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In an emailed statement accompanying the filing, Hobbs denounced the effort from the Texas-based Alliance for Hippocratic Medicine, which is leading the challenge of the FDA approval of mifepristone, as an overreach and vowed to continue working to protect abortion access.
“We cannot allow out-of-state extremists to control women’s bodies and attack the reproductive health of Arizonans,” she said. “Arizonans rely on access to safe reproductive healthcare and I will always fight to defend it. I am proud of this amicus brief and won’t stop working until Arizonans’ freedoms are protected.”
The Democrat has been a vocal proponent of reproductive rights and ran her 2022 campaign on the promise to deter attacks from the state’s Republican-majority legislature on abortion.
Arizona is currently under a 15-week abortion ban, but conservative lawmakers have sought to further restrict access to abortion care by proposing legislation that would enshrine fetal personhood — all of which was promptly vetoed by Hobbs.
This year, Hobbs has made it a priority to repeal a near-total abortion ban from 1864 that the Arizona Supreme Court is mulling whether to reinstate and make contraception access a right.
So far, mifepristone has been available to patients in Arizona without interruption. When the Alliance for Hippocratic Medicine won a ruling in federal appeals court last year that temporarily reversed the FDA approval of mifepristone, Arizona’s Attorney General Kris Mayes joined a multi-state lawsuit counter suing the FDA in a different appellate district that preserved access to the medication in the Grand Canyon State.
Mayes, a Democrat who also launched her campaign on the issue of abortion, has mobilized her office to support litigation that seeks to protect reproductive rights. And on Wednesday, she joined an amicus brief penned by 24 Democratic attorneys general asking the U.S. Supreme Court to strike down the ruling by the 5th Circuit Court of Appeals, saying that the opposition to the abortion drug has no basis in fact or science.
The drug has been the subject of FDA study for at least two decades and has been found to be incredibly safe.
“Mifepristone has been used safely and effectively by millions of Americans for over twenty years,” Mayes said in an emailed statement. “Allowing the Fifth Circuit’s ruling to go into effect would harm countless Americans and cause widespread confusion nationwide. I urge the Supreme Court to reverse this ruling and protect access to medication abortion.”
The 5th Circuit’s ruling to set mifepristone use back to nearly a decade ago is on hold pending the Supreme Court’s decision.
But if the high court concurs with the appellate court, abortion advocates fear the impacts on women across the country will be devastating. Medication abortions account for more than half of all abortions in the country.
In Arizona, which has already seen a dramatic decrease in abortions after the fall of Roe v. Wade, the number of medication abortions constituted just over half of the 11,407 procedures provided in 2022 — and 99% of those were induced by a combination of mifepristone and misoprostol. The two medications are often used in conjunction, and while misoprostol can be prescribed by itself, its effectiveness rate on its own is lower.
The only other alternatives are surgical procedures, which, while still safe, are more invasive, carry higher risks and are more expensive.
“Significantly reducing access to mifepristone will not make patients safer—it will only add extreme burdens to healthcare providers, patients, state medical systems, and those responsible for safeguarding public health and safety, including Governors,” Hobbs and the other Democratic governors wrote in their amicus filing.
Reversing mifepristone’s FDA approval jeopardizes the ability of states to rely on the agency’s other approvals, the governors wrote, especially if such groundless accusations as those advanced by the anti-abortion doctors can be accepted as a valid challenge. They noted that other necessary public health mandates, including school immunization requirements, elicit criticism from opponents based on moral stances, and undermining the FDA’s authority could open the door to more lawsuits.
“When states make decisions about allocating funds, expanding telehealth, or allowing qualified practitioners to administer certain drugs, they do so in reliance on FDA’s expert judgment—and with the understanding that FDA’s expert judgment will not be easily displaced at the request of private litigants with moral qualms about particular drug treatments,” reads the brief. “Governors cannot effectively serve their vital role of protecting public health and safety if FDA judgments that have stood for years, or even decades, can suddenly be substituted for the moral judgments of private citizens in other states.”
The governors added that curtailing access to mifepristone would have far-reaching consequences for the public health systems in their states. In the wake of the high court’s decision to rescind the constitutional right to abortion in 2022, many states have chosen to restrict and ban abortion access, forcing patients to travel out-of-state. The influx of demand in states where abortion is more accessible strains the ability of a limited number of clinics to provide care, and, often, in-state residents experience increased wait times and a shortage of appointments as a result.
Most clinics and doctors that provide abortion care don’t just perform abortions, either, and patients looking for general health care are also negatively affected. Additionally, the governors warned, reversing the FDA approval of mifepristone will likely lead to a shortage of the drug, as suppliers will be required to repackage and relabel it before it can be sold.
“These resource constraints will almost certainly mean long wait times for cancer and STD screenings, pregnancy visits, and other healthcare needs,” the governors told the court.
In the end, the Supreme Court should refuse to reverse the drug’s FDA approval because doing so would undermine its own ruling in Dobbs v. Jackson Women’s Health Organization, which overturned the federal right to abortion and sent the issue of regulation back to the states. If mifepristone is curtailed, they argued, the decisions of Democratic states not to restrict abortion would be violated.
“Dobbs itself promised an approach that would allow each state to meet the reproductive healthcare needs within the state,” reads the brief. “What the lower courts’ decisions embraced here is exactly the opposite—one that would permit a single doctor in a single state to dictate what other states can and cannot do.”