S1: The US Supreme Court has blocked an effort to ban access to the abortion pill in a ruling announced late Friday. The decision provides a temporary reprieve from a Texas court's ruling seeking a federal ban on mifepristone , which is used in more than half of abortions in the United States. Here to explain what this ruling means is Dan Eaton , legal expert and partner at the San Diego firm Seltzer , Kaplan , McMahon and Vitek. Also , Maggie Schroeder. She is a partner with Robertson Schroeder LLP and former president of the Lawyers Club of San Diego. Welcome to you both.
S2: Thank you for having us.
S3: Thank you , Jade.
S1: To start.
S2: So this to me was the decision of the Supreme Court to say , let's let the Fifth Circuit Court of Appeal rule on this in general. And then I expect that there will be legal challenges that will go back up to the US Supreme Court , depending on what the ruling of the Fifth Circuit is.
S1:
S3: I mean , I think the key in what Maggie said was status quo. And that's why what the Supreme Court did wasn't a tremendous surprise. It just preserved access to mifepristone as it existed before Judge Kaczmarek decision. With respect to how this plays out , what will ultimately happen is the Fifth Circuit will issue its ruling , which probably will track its ruling largely , largely upholding Judge Kaczmarek ruling , restricting access to presto. And what will likely happen is that the Fifth Circuit , like it did with its preliminary ruling , largely upholding what Judge Kaczmarek did. The Supreme Court will take review , I expect , of the Fifth Circuit's ruling and then ultimately decide the matter on the merits , which it did do in issuing this stay of Judge Kaczmarek order in its entirety.
S1: And Dan , as you referred to , I mean , the Supreme Court was asked to weigh in on a Texas judge's ruling seeking a ban on mifepristone. Let's get into that case. Tell us about it.
S3: It's fascinating , actually , because it's not nearly as interesting as the core issues involved in Dobbs , which was decided last year , which overruled Roe versus Wade. What this decision was about is about whether the federal Food and Drug Administration filed proper procedures , administrative procedures in initially authorizing modification , and then in its subsequent regulations in 2015 , which liberalized access specifically with respect to making it available through the mail available a generic version of the drug available and also available through telemedicine. And what Judge Merrick said was , no , it didn't and upended access to Freestone going back 20 years. Now with that ruling stands and if it were allowed to stand even now , it would call into question a lot of drugs that the FDA has approved dealing with a whole bunch of issues. But the core issues here are largely administrative. Now , there is an interesting twist here with respect to the Comstock Act , which goes back to the 19th century , which deals with abortion and and access to abortion kinds of things through the mail and aiding and abetting abortion. But really , the core of this is administrative law. And those are the kind of issues that only lawyers can really love. Yeah.
S4: You know , but also.
S1: Like this case was taken up by the court on an expedited basis.
S3: Look , they are going to decide this. They're going to issue the judges are going to issue their ruling in a matter of a couple of weeks , because I suspect they're ruling is largely going to track their ruling , mostly upholding Judge Kaczmarek original ruling , which said that what the FDA did in 2015 liberalizing access to Freestone was not correct , according to the Administrative Procedure Act. And then next stop , US Supreme Court.
S1: Maggie , in addition to the Texas lawsuit , there's also another court case involving mifepristone in Washington state.
S2: And so that was part of the reason why those cases went up or why this issue was looked at by the US Supreme Court to essentially resolve what is now a circuit split between these kind of conflicting opinions in Washington and that in Texas. And I think , you know , to Dan's point , that's why this is such a sort of notable case , because this is the first time that a court has tried. To effectively overturn the authority of the Federal Drug Administration to approve a medication and to determine that that medication is safe and effective , and in particular , one that has been on the market for over 20 years and has been demonstrated time and time again to be effective and safe means of terminating a pregnancy as well as for its other indicated uses.
S1: You're listening to Midday Edition. I'm Jade Hindman. I'm speaking with legal analyst Dan Eaton and Maggie Schroeder about access to the abortion pill mifepristone.
S2: And I believe that this was framed particularly to do that. The federal district courts do have the authority to issue opinions that can affect all states. So if this opinion is upheld , it would impact the ability of patients to receive this medication and states even where abortion is legal , including in California. So this is certainly something that has the ability to impact the entire country and can impact the ability of patients in states where abortion is legal to access this , in some cases life saving , life saving , saving and important treatment.
S1: And since California passed a constitutional amendment protecting abortion rights in the state , does this ruling change anything on the ground here , though ? California does not have bans in place , the neighboring state of Arizona does , for example.
S2: So it would not impact it wouldn't have the ability of overturning the state constitutions. Right. To obtain an abortion. But if upheld , it would restrict the ability of doctors to administer that drug here or the medication here in California. So , you know , one of the issues here and which is something that I think the plaintiffs failed to acknowledge in this case , is that the alternatives to this medication , mifepristone , including surgical abortion or continued pregnancy , also have rates of complications that are , in fact , much higher than the risks of mifepristone. The risk of childbirth related death is actually 14 times higher than the rate associated with the legal abortion. So while it's not directly impacting the right of a California citizen to have an abortion , it's impacting our ability to obtain this medication and potentially others. If this ruling sets a precedent for judges being able to overturn the power and authority of the FDA to approve medications. And I think Diane mentioned this earlier , not just for abortion related medications , but for other treatments as well.
S1:
S3: First , this ruling would not affect the fact that a lot of red states have already put in place a lot of these restrictions with respect to receiving abortion medication through the mail. That wouldn't be a touch. The red states are going to continue to do their thing. With respect to what Maggie said about alternative drugs , one of the most prominent ones , of course , is my surprise style , and that's the one that Gavin Newsom has said that he is going to stockpile. But as Maggie also said , using that drug alone instead of as a part of a two drug regime with misoprostol results in a larger number of complications , including nausea and other things that are not present when you use the two drug protocols. So that's why this is going to end up having a significant effect , even if it doesn't outright eliminate the availability of drug induced termination of pregnancy.
S2: So Dan's absolutely right. I mean , in fact , my suppress tool is frequently used , but in fact , it's used really more outside of the United States for treating abortions and miscarriages on its own. And Dan's absolutely right that the use of both of them together is not only more effective , but results in less complications and less side effects than just using one of the on the medications on its own.
S1:
S2: Again , the FDA , my understanding is that it has not been approved for abortions , but it is used off label for this purpose in the United States , which is completely legal and fine. We can I think we can expect that if the Texas ruling is upheld , that we would see legal challenges to the use of my style if it's being used for abortions as well. But I do not believe we have seen that yet.
S3: And to Maggie's point , let's be very clear. My supposed to listen ulcer medication. And that's why that's what we're that's what we're talking about here. But certainly when you're talking about use beyond what is currently authorized , that suggests that. That is next up , depending on what ultimately happens. But this is going to play out. And the interesting about the timing of all of this is let's assume the Fifth Circuit issues its ruling sometime in early June , and the Supreme Court accepts review , which it probably will. I suspect that means you're looking at a Supreme Court ruling that is going to come down in June of 2024 , right in the middle of a presidential election. I understand these are administrative , esoteric issues , but the fact that we are talking about it today suggests that yet again , abortion is topic A , and that's going to have a consequences politically , even though the judges , of course , are not going to be influenced by political considerations and how they rule , they're not.
S1: But I mean , how much of this do you think is political ? I'll ask that of both of you.
S2: My so I Dan , are both lawyers. I very much , you know , and I believe in the integrity of the judicial system and the non biases of our judges as this particular opinion. I did read it and it was notable to me in a couple of a couple of ways. In the third paragraph of the opinion , the judge makes a very , in my opinion , inflammatory statement about what this medication actually does. And the judge makes this inflammatory statement without citations to evidence or authority. And it is not , in my opinion , it's not based on any medical authority. And it really demonstrates this particular judge's personal bias as to this particular issue. And this is a judge who has a you know , before he was appointed to the bench by former President Trump , was a pro-life activist. And in my mind , this opinion really , really demonstrates his personal biases as to this issue. The opinion , I thought , was also notable in the respect that it it very much relied on if in a large part , if not all part on the evidence submitted by the plaintiffs in this case , rather than the FDA , the plaintiffs in this case are the Alliance for Hippocratic Medicine , the American Association of Pro-Life Obstetricians and Gynecologists , as well as the Christian Medical and Dental Associations. And the court really relies on kind of the evidence and the argument of those plaintiffs without and sort of disregarding , in my mind the evidence and authority submitted by the FDA in opposition.
S1:
S3: I don't think this is a kind of issue because it involves administrative procedure that we can just automatically say that the court is going to break down ideologically a certain way. I suspect that what will happen when all is said and done that Freestone will continue to be made available. The question in my mind is whether the more recent availability by the FDA with respect to telemedicine , generic and through the mail will continue to be allowed subject to the FDA looking at that again. But this is not the kind of issue like Dobbs was , where you can predict ideologically how the nine member Supreme Court is going to come out.
S1: And Dan , you kind of touched on this. I mean , how far reaching this could be. I mean , you mentioned telehealth being up for , you know , debate.
S3: The telehealth is , of course , directly related to this particular case , because it has to do with the liberalization of the FDA in 2015. With respect to the availability of Mephisto , what I'm talking about , if you are talking about upending the FDA's approval as a matter of administrative review , then you're talking about upending potentially the FDA's approval of a wide variety of drugs , dealing with a large number of conditions. It'll be interesting to see whether other drugs are subject to the same challenges that are not subject to the same kind of vested interest that you have with this particular drug.
S4: Also , Dan , you know , when we.
S1: Talked with you towards the end of the last Supreme Court's term , you inferred that this current season could be particularly important for the court.
S3: We're talking about affirmative action. We're talking about religious accommodation , even some of the interesting issues with respect to true threats and what it means to make a true threat. Look , in the next couple of months , you are going to see some very big headline making opinions from the Supreme Court , not going to have the same kind of bombs bursting in air that the Dobbs ruling , which overruled versus Wade did. But the consequences of these rulings will be very dramatic indeed. And next. Term , by the way , is not looking any quieter. You are going to continue to see the Supreme Court in the news because the Supreme Court gets paid the big bucks to resolve the tough decisions.
S4: Any final thoughts , you all.
S2: So , I mean , I agree with what everything Dan has said here. I do. You know , there have been a number of cases since the overruling of Roe versus Wade because of Dobbs. I think there's been a total of almost 38 or 40 cases that have been filed as of April challenging abortion bans in 21 states. 20 which of which excuse me , which 20 which remain pending at either the trial or appellate court levels. So I do think this is just one of many trying to kind of either restrict or kind of take the Supreme Court's temperature on how far they're willing to go on these types of fundamental issues. And I think Dan made an excellent point that we are going to see a number of cases coming up from the states challenging. What we have experienced is long standing rights. Marriage equality is one. I know one of the states just came out with a ruling saying kind of challenging the fundamental right to marry who you choose. I expect that one to go up , you know , up to the Court of Appeal and potentially the Supreme Court , as well as in other cases , challenging abortion rights and other things. That's just kind of the nature of where we are in the political climate. And I think that activists to these issues are empowered and emboldened by the current makeup of the Supreme Court.
S3: Well , following up on what Maggie said , the expectation when you read the Dobbs opinion is that this issue was going to be returned to the states and was going to abortion that is and was going to return to the states in a legislative manner. Obviously , Justice Kavanaugh also said maybe Congress could also weigh in legislatively , But any expectation that Dobbs was going to end abortion related litigation in the federal courts has clearly been rebutted by this case and many other cases to come. Abortion is going to continue to be litigated in the federal courts , even as you see the use of the initiative process and legislative process in states with respect to regulating the right of a woman to terminate her pregnancy.
S1: I've been speaking with Dan Eaton , legal analyst and partner at the San Diego firm of Seltzer , Kaplan , McMahon and Vitek. Also , Maggie Schroeder , partner with Robertson Schroeder LLP and former president of the Lawyers Club of San Diego. Thank you both for a great conversation and for being here today.
S2: Thank you , Jade.
S3: Good to be with you , Jade.
S1: Stick with us. Up next , Dr. Pratima Gupta from UCSD Health joins the conversation to talk about what these legal challenges to reproductive health care mean for patients.
S5: Many of my colleagues are having to navigate a really tricky and nuanced legal landscape.
S1: You're listening to KPBS Midday Edition. You're listening to KPBS Midday Edition. I'm Jade Hindman. So we've heard the legal arguments on the Supreme Court's recent ruling on mifepristone. Now we want to hear from a doctor on their reaction to the recent developments involving that drug. I'm joined now by Dr. Pratima Gupta. She's an associate staff physician with UC San Diego Health Department of Obstetrics , Gynecology and Reproductive Sciences. And Dr. Gupta , welcome.
S5: Thank you so much for having me.
S1:
S5: It's swallowed , and it essentially is an anti progesterone. So progesterone is the hormone that supports a pregnancy. So prison essentially stops a pregnancy from growing. And that's in the case of when we're using it for medication , abortion.
S1:
S5:
S1:
S5: It would change our prescribing practices in that we would have to shift towards a misoprostol only regimen , which is the second medication that is used in medication , abortion.
S1:
S5: It's been used for years. It is also used to treat Cushing's syndrome , and it's also used in the treatment of uterine fibroids.
S1: And what about miscarriages , for example ? Yes.
S6:
S5: So mifepristone has also been studied and been safe in terms of miscarriage management to improve the efficacy of somebody who wants to pass their pregnancy tissue after a miscarriage and decrease the amount of bleeding.
S7: Mm hmm.
S4: You know , a big part.
S1: Of the recent case surrounding the medication had to do with the Food and Drug Administration. While mifepristone is approved by the FDA , the actual approval process was in question.
S5: It's been extensively studied , and we're pleased that the Supreme Court ruled to block this unsound ruling from this lower court , which actually questioned exactly what you talked about. The FDA has a well-established regulatory authority that reviews research , reviews evidence and determine which drugs should be approved for the US market.
S4: And now we've been hearing.
S1: About another medication , Misoprostol , that you mentioned earlier. Can you explain what that medication does and how it's used ? Yeah.
S5: So misoprostol is the second medication that is used both for medication , abortion to terminate a pregnancy or for miscarriage management. And misoprostol essentially causes sort of mini uterine contractions per se , if you will , and to expel the pregnancy tissue. So that's why it's often used in conjunction with mifepristone in the preferred medication abortion regimen , with mifepristone essentially stopping the pregnancy from growing by competing with progesterone to which supports the pregnancy. So it stops the pregnancy from growing. And then it's used in conjunction with misoprostol , which helps your uterus expel the pregnancy tissue.
S1: And Dr. Gupta , you practice medicine here in California , which has strong abortion protections in place , but you.
S4: Also have.
S1: Colleagues in states where abortion access has become more limited. What are some of the challenges they're seeing in their day to day practices ? Yeah.
S5: So unfortunately , most abortions are now banned in 14 states following the Supreme Court's decision to overturn Roe versus Wade. So this is just a flagrant attack on by the anti-abortion extremists to essentially ban all abortion care. And these bands are never about making the care safe or protecting the people who need the care. They're really always about attempting to make abortion care impossible to access. And so many of my colleagues are having to navigate a really tricky and nuanced legal landscape. They are having to confront really their moral compass in terms of what is defined as a necessary abortion and having to have affirmative justice to to prove that. And it's really questioning their justice and equity framed lens that we bring to providing abortion care and health care for all.
S1:
S5: Just to clarify , it's extremely limited and very restrictive to in terms of it with a gestational age ban and a mandatory waiting period. But they don't have a complete ban. But I will say that myself and my colleagues in the reproductive health community , we won't give up. We won't back down. And we're going to continue this work here in California. As you said , we are reproductive sanctuary state and we have collaborated with our allies and partners to actually protect and improve our access to care and stability for both residents of California and those who might travel to our states to receive abortion care. As you mentioned , we have seen a overwhelming increase in terms of out-of-state patients seeking abortion care here in California and specifically here in San Diego , since we are very close to Arizona and other restrictive states.
S4: Also close to us is Tijuana.
S1: So here in San Diego , I mean , it's common for people.
S4: To cross the.
S1: Border for medical care or cheaper medication.
S5: So such as you mentioned , if they go to a healthcare provider in Tijuana or pharmacy. And it's true that with these medications , both either the mifepristone and misoprostol or with the misoprostol alone regimen can safely have a self-managed abortion.
S4:
S5: You know , the critical concern is safety of people. One of the concerns might be that people are being surveilled or punished for obtaining their own medications or helping members of their community to get the medications their need. But people deserve to have an abortion that they want and they need. And without the fear of surveillance punishment or going to jail medically , You know , one of the silver linings of the pandemic is when we minimize interactions between the healthcare providers and our patients. We were able to see that via telehealth. And with the support of medical providers , people can manage their own abortion safely.
S4: So , Dr. Gupta , if. Mifepristone.
S1: Mifepristone.
S4: Does go away because we know this is this.
S1: Won't be the only legal challenge. I mean , what does that mean ? For reproductive health care.
S5: So we in the reproductive health world have been preparing for this , and we do have a safety profile behind the misoprostol only regimen. So that's the second pill in the traditional medication abortion , and it's used alone in many parts of the world , has demonstrated safety. And we would shift towards a misoprostol only regimen both for medication , abortion and for miscarriage management. And I just want to reassure everyone out there that misoprostol alone is a safe alternative. Just unfortunately , it can have a little bit more protracted bleeding and some more side effects , but it's still safe , which is why the preferred option is the two pill regimen.
S4: I've been speaking with Dr. Pratima Gupta. She's an associate.
S1: Staff physician with UC San Diego Health's.
S4: Department of.
S1: Obstetrics , Gynecology and Reproductive Sciences. Dr. Gupta , thank.
S4: You so much for weighing in on this.
S5: Thank you so much , Jade , for all your work.
