Attorney General Becerra Files Amicus Brief Opposing FDA’s Attempt to Restrict Safe Access to Abortion Medication During COVID-19 Crisis
SACRAMENTO – California Attorney General Xavier Becerra joined a multistate coalition of attorneys general in filing an amicus brief in the U.S. Supreme Court in support of the American College of Obstetricians and Gynecologists (ACOG), the Council of University Chairs of Obstetrics and Gynecology, the New York State Academy of Family Physicians, Sistersong Women of Color Reproductive Justice Collective, and Honor MacNaughton, M.D. The multistate coalition joins these healthcare providers in opposing the Trump Administration’s petition to stay a federal district court’s ruling that halted enforcement of the U.S. Food and Drug Administration’s (FDA) requirement that Mifepristone, a single-dose oral medication used for early-term abortions, be dispensed in-person. The coalition argues that granting the Administration’s request to stop the district court’s preliminary injunction will be harmful to patients and public health because it will require women to travel to in-person visits with their doctor in order to obtain time-sensitive medication, potentially exposing them to COVID-19.
“We are experiencing an unprecedented global pandemic and instead of making care more accessible by taking precautions to reduce the spread of COVID, the Trump Administration continues to push for anti-choice restrictions that put women in harm’s way,” said Attorney General Becerra. “The federal government should be removing barriers that force women to unnecessarily go in-person to obtain safe and legal abortion medication. We will continue to fight President Trump’s attempts to restrict women’s access to safe healthcare options.”
In the brief, the attorneys general argue no one will be harmed by the preliminary injunction granted by the district court, but granting the federal government’s petition will cause irreparable harm, including to the states’ public health efforts to reduce COVID-19 transmission by limiting unnecessary in-person contact. The preliminary injunction allows women to have telehealth visits with their healthcare providers before being prescribed Mifepristone. These visits only take place when the healthcare provider determines telehealth to be an appropriate option that is consistent with the standards of care. The patient’s prescription may then be mailed to them under the supervision of a certified provider, allowing women to avoid potential COVID-19 transmission from an unnecessary in-person appointment.
If the district court's preliminary injunction is stayed, the federal government can reinstate restrictive measures in accessing care. These measures include requiring patients to obtain medication from a clinic, medical office, or hospital under the supervision of a healthcare provider if the medication is prescribed for the purpose of terminating a pregnancy. The restrictive measures would be applied even if the healthcare provider believes a telehealth consultation and delivery of the medication by mail or courier would be safe. In contrast, the federal government has approved access to highly controlled substances, like some opioids, by suspending in-person evaluation requirements during the pandemic.
Mifepristone has been approved by the FDA since 2000, and remains the only drug approved in the United States for pregnancy termination. Since its approval, about three million women in the United States have used the medication to terminate a pregnancy.
On August 5, 2020, Attorney General Becerra joined a multistate amicus brief supporting ACOG’s opposition to the FDA’s motion for stay of the district court ruling halting the federal government’s restrictions imposed on Mifepristone. In June, Attorney General Becerra joined a coalition filing an amicus brief supporting ACOG’s challenge to the FDA’s Risk Evaluation and Mitigation Strategy (REMS). In March, Attorney General Becerra led a multistate coalition in sending a letter to the FDA, asking them to remove REMS restrictions or waive enforcement of these requirements in light of the COVID-19 pandemic and nationwide stay-at-home orders.
In filing the amicus brief, Attorney General Becerra joins the attorneys general of New York, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.
A copy of the brief is available here.