California abortion pill suppliers ready with Supreme Court workaround

The last time the Supreme Court threatened to end access to the nation’s most popular abortion method, California’s network of online providers and their drug suppliers scrambled to respond.

Now, they’re not even breaking a sweat, with the fate of the cocktail used in roughly two-thirds of U.S. layoffs hanging in the balance once again.

D., co-founder of MYA Network, a consortium of virtual reproductive health care providers. Michele Gomez said the supply chain is “ready to switch within a day” to an alternative drug combination.

“It’s not going away and it’s not going to slow down,” Gomez said.

On May 1, the 5th U.S. Circuit Court of Appeals ruled that it would block virtual prescribing and mailing of the drug mifepristone, making such deliveries illegal nationwide. On Monday, the Supreme Court reversed that order, allowing prescriptions to continue until the court issues an emergency order next week.

Mifepristone is the first half of a two-drug protocol for medication abortion, accounting for 63% of all legal abortions in the United States in 2023.

One-quarter to one-third of these abortions are now prescribed by healthcare providers over the internet and delivered by mail; It’s a path Louisiana and other prohibition states are fighting to prevent.

“All telehealth providers have increased access to abortion,” Gomez said. “We uncovered an unmet need.”

However, the second component of the cocktail, misoprostol, can be used to induce abortion on its own; This method is usually more painful and slightly less effective.

It would be easy for providers to switch to a misoprostol-only protocol, but it would be much harder for courts to block it, experts said.

“We heard about it on Friday, and we heard that the organizations that were mailing the pills were mailing the misoprostol on Saturday,” Gomez said. “They already knew what to do.”

The Supreme Court’s Roe vs. decision in 2022. After overturning the Wade case, California became one of the first states to enshrine in its Constitution the abortion rights of its residents and the protection of clinicians who prescribe abortion pills to women in states where the ban exists.

Last fall, lawmakers in Sacramento expanded those protections by allowing pills to be sent by mail without the doctor’s or patient’s name attached.

But experts have warned that cases like the one set to be decided next week could sharply limit abortion rights even in states with comprehensive legal protections.

“Although California has built a fortress around its own constitutional protections of reproductive freedom, [protections] “If the Supreme Court grants license to these states, we could become vulnerable to the whims of anti-abortion states,” said Michele Goodwin, a Georgetown Law professor and reproductive justice expert.

Legal experts are divided on how judges will decide the mail-order fate of the drug.

“This is a case where the law is clearly not going to matter,” said Eric J. Segall, a Georgia State University law professor and Supreme Court expert.

“In a very important midterm election year, I think there will be at least two Republicans on the court who will decide that preserving the 5th Circuit will really hurt Republicans at the ballot box,” he said. “If women can’t get it in the mail in California or other blue states where abortion is legal, there will be devastating consequences, and I think the court knows that.”

But he and others believe it’s no longer a question of whether drugs will be restricted, including in California, but when and how.

“This sets the stage for a legal showdown that could certainly come,” Goodwin said.

The court’s most conservative justices could find grounds to act in the long-forgotten Comstock Act of 1873. The brainchild of America’s zealously anti-porn postmaster Anthony Comstock, the law not only banned the “Birth of Venus” and “Lady Chatterley’s Lover” letters from being sent by mail, but also banned condoms, diaphragms, and any medicine, device, or text that could be used for abortion.

Experts said the law’s anti-abortion provision is still in effect, although it has not been implemented since the 1970s.

“The next step will be with the Comstock Act, which Justices Alito and Thomas have already alluded to,” Goodwin said. “In this case, it’s like playing Monopoly; we can skip the mifepristone and go straight to birth control. Our goal is to make sure none of this goes in the mail.”

The move would upend the way Americans get both abortions and birth control and put a modest LA County pharmacy squarely in the government’s crosshairs.

Gomez explained that although doctors in nearly two dozen states can safely prescribe medication abortions to women anywhere in the U.S., only a handful of private pharmacies actually fulfill those mail orders. The largest of these is Honeybee in Culver City, which did not respond to requests for comment.

Even if the justices fail to reach Comstock, a ruling in favor of Louisiana next week could create a two-tier abortion system in California and other blue states, experts said.

“The people this case hurts the most are the poor and rural people,” said Segall, the Supreme Court expert.

National data show that abortion patients are disproportionately poor. Most of them are already mothers. Losing postal access to mifepristone will leave many people faced with a more painful, less effective option, while those with the time and means to get to the clinic will continue to receive the gold standard of care.

“At the heart of this are fundamental questions about citizenship,” said Goodwin, the constitutional expert. “Under the 14th Amendment, women are supposed to have equality, citizenship, and liberty. It’s as if the Supreme Court took a black pen over all those words and suppressed it.”

For Gomez and other providers, this is tomorrow’s problem.

“Lawyers and politicians will do their part,” the doctor said. “Healthcare providers are just trying to get medications to people who need them.”