While the Biden administration plans to quickly appeal any ruling against the pills — which could come any time after attorneys for both sides submit briefs on Friday — lawyers say they’re not counting on federal leaders to take the drastic measures they deem necessary to deal with the potential loss of the nation’s most widely used method of abortion.
“We are not holding our breath for government action,” said Elisa Wells, the founder of the Plan C organization which helps patients order the pills online. “We know that in the absence of political support and leadership, this is what we have to do. We need to support ourselves and our community.
Bracing for a ruling that cuts off access to drugs, abortion-rights proponents are giving patients and providers a crash course in a workaround that uses just the second pill of the two-pill regimen — the misoprostol – and are considering expanding the clinic’s capacity if patients need to switch from the pill to surgery. Lawyers will also hold an “emergency mobilization” on Saturday near the Texas courthouse that will hear the case on Saturday to draw more attention to it and pressure political leaders to act.
Since anti-abortion medical groups sued the FDA in November, Planned Parenthood, Plan C, the Women’s March, the Center for Reproductive Rights and other advocacy groups have pleaded with government officials to do more to prepare for a possible decision blocking the sale of the pills – hold briefings with lawmakers, governors, attorneys general and health officials.
The Biden administration has, so far, pushed back on calls from groups to declare a public health emergency over abortion. And top health officials in the Biden administration have played down the possibility of the pills being banned, with HHS Secretary Xavier Becerra telling reporters last month he was “very confident” the court would side. from the FDA.
“The FDA took action based solely on its statutory authority and the science — the data in front of it and the evidence behind it,” Becerra told reporters in late January. “The FDA didn’t take this lightly. We’ve had over 20 years of use of this medical abortion, so we’re very confident that the work done by the FDA will stand the test, whether it’s the time or the courts.
The White House and abortion rights groups meet regularly and are mostly aligned on policy, and advocates have praised the administration for championing abortion rights and rolling out policies in recent times. weeks protecting patient access to pills in the mail and at retail pharmacies. But there’s also an undercurrent of frustration with the scope and pace of the administration’s response to the myriad threats to abortion access across the country.
That tension was evident in reactions to Biden’s State of the Union address on Tuesday — the first since Roe vs. Wade was overthrown. Planned Parenthood and NARAL Pro-Choice America have praised the president for pledging to veto any congressional ban, while other abortion rights groups like We Testify and All*Above All have said they were disappointed that the speech did not mention the impending court decision. about the pills or details about how the administration might handle it.
“The president continues to fail to meet the moment with his words,” said Renee Bracey Sherman, executive director of advocacy group We Testify. “He’s not showing up for people getting abortions like we need him to. We are relieved to know that he is ready to veto a national abortion ban, but what will he do to make abortion accessible to all? We deserve a real plan.
The White House has defended its efforts to protect access to abortion, pointing to a six-point strategy HHS released in January detailing the various steps taken since then. Roe vs. Wade was struck down. Biden himself has repeatedly stressed that the only way to fully protect access to abortion is for Congress to codify Deer.
The lawsuit by anti-abortion legal powerhouse Alliance Defending Freedom, representing a group of conservative doctors and medical groups, targets FDA approval of mifepristone two decades ago, arguing that the agency failed to study adequately the safety risks of the medicine.
The challenge, said ADF senior attorney Julie Marie Blake, is to “seek to protect girls and women from the documented dangers of chemical abortion drugs.”
The Biden administration told the court that these accusations were baseless and politically motivated, and presented evidence that the drug has been used safely by millions of people over the past 23 years.
Still, White House officials privately worry about the far-reaching implications if mifepristone’s FDA approval is rescinded and what they see as the limited options they have to respond, according to three people familiar with. internal discussions. Biden’s Gender Policy Council and Office of Intergovernmental Affairs have met several times with White House lawyers to plan the various possible outcomes, one of the people familiar with the internal discussions said.
The Justice Department is also set to appeal quickly if Kacsmaryk comes out against the government, hoping to avoid a temporary ban on the use of the pill, another person familiar with the internal discussions said. . That appeal, however, would go to the 5th US Circuit Court of Appeals, right, and then to the Supreme Court – an outcome fear advocates fear given the High Court ruling last year overturned Roe vs. Wade.
The White House is also planning a courier response, officials said, which would likely present the ruling as further evidence of its argument that Republicans are committed to banning abortion everywhere, as part of a plan to refocus national attention on an issue that has proven to be politically powerful.
Democrats in Congress, meanwhile, said they were alarmed by the case but unsure how to prepare for a decision given partisan divisions over the issue.
“I’m really worried about what this means for women across the country,” Rep. Pramila Jayapal (D-Wash.), the leader of the Congressional Progressive Caucus who spoke out about her own abortion. “But obviously, you know, a legislative response requires Republicans to be with us. So we will continue to look for ways to try to do things administratively, but unfortunately the legislative options are blocked.
Since the case targets drug regulation at the federal level, there is also little that state officials can do to respond to the decision, legal experts and attorneys said. Abortion rights groups say they primarily urge states that support abortion rights to lobby their federal counterparts “and tell them it can’t be allowed.”
“There are a lot of lawmakers and state leaders out there who want to be helpful right now,” said Kirsten Moore, director of the Expanding Medication Abortion Access (EMAA) project. “But it’s about the administration’s willingness to be expansive right now, and it hasn’t always shown a willingness to lean in and be forceful on this issue.”
Under pressure from lawmakers and progressive advocates to take more decisive action on the issue, Biden officials have in recent months revisited the idea of declaring access to abortion a public health emergency.
The move, supporters say, could make it easier to send federal health workers to help women get abortions and free up money for blue states facing higher demand from those who have to cross. state borders for the procedure.
But the White House remains deeply skeptical — not convinced it would be useful practically or politically. Sending federal workers to GOP-led states to facilitate access to abortion would likely spark a political outcry that risks backfiring, two of the people familiar with the internal discussions said, and officials doubt that the flexibilities granted through a health emergency are significant enough to make a difference.
“At this point, we don’t believe the declaration of a public health emergency would provide any significant new resources in this fight,” Jennifer Klein, who co-chairs Biden’s Gender Policy Council, told reporters last week.
The move would also invite an immediate legal challenge, with unpredictable results. Courts could overturn the declaration, potentially limiting the government’s future ability to declare emergencies for a broader set of issues, people familiar with the internal discussions said. And even if confirmed, a future Republican administration could possibly use this precedent to justify declaring a public health emergency aimed at restricting access to abortion.
“You’re looking for trouble,” said a White House adviser. “Republicans may later declare a fetal emergency.”
Abortion rights groups say the high stakes of a ruling against the pills and the uncertainty surrounding a federal response motivated them to take matters into their own hands.
Aid Access and Plan C – two groups that help patients order pills overseas no matter where they live in the US – have made videos encouraging people to buy the drug before they get pregnant just in case. they would need them in the future, saying “abortion pills can be in our hands no matter what the courts and politicians decide.
The FDA has spoken out against stockpiling – known as an advance stock – arguing that it prevents doctors from assessing whether a patient is within the first 10 weeks of pregnancy when the pills are approved for use and if there is a risk of ectopic pregnancy. But early supply is something advocacy groups had encouraged even before the lawsuit against the pills emerged, and a tool they are now backing is one of the only ways to prevent the early ruling of the pill. annihilate access in much of the country.
“Why not just have it on hand so you can use it when you need it?” Wells said, noting that the pills can be stored for up to two years at room temperature. “If you’re in a state with a six-week ban, for example, having it ahead of time makes a lot of sense. You can take it within six weeks very easily. But if you wait to order them until you know you’re pregnant, you might run into that limit.
