California abortion pill providers are ready for a Supreme Court settlement

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

Now, with the end of the cocktail used in nearly two-thirds of the US shutdown and the balance, they aren’t even breaking a sweat.

Dr. Michele Gomez, founder of the MYA Network, a consortium of reproductive health care providers, said the supply chain is “ready to change in a day” to another combination of drugs.

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

On May 1, the 5th US Circuit Court of Appeals ruled to ban the drug mifepristone from being prescribed and sent by mail, making such delivery illegal nationwide. On Monday, the Supreme Court suspended that decision, allowing the prescription to continue until the court issues an emergency ruling next week.

Mifepristone is the first part of the two-drug deal for medical abortions, which will account for 63% of all legal abortions in the US by 2023.

Between a quarter and a third of those abortions are now ordered by health care providers over the Internet and delivered by mail — a practice Louisiana and other banning states are fighting to block.

“Access to abortion has increased with all health care providers,” Gomez said. “We found an unmet need.”

But the second ingredient of the cocktail, misoprostol, can be used to produce the stomach itself – a method that is often more painful and less effective.

It would be easy for providers to switch to a misoprostol-only protocol — and very difficult for courts to block, experts say.

“We heard about this on Friday and the organizations that mail pills were sending misoprostol on Saturday,” said Gomez. “They still know what to do.”

After the Supreme Court overturned Roe vs. In 2022, California became one of the first states to include citizens’ abortion rights in its Constitution and passed legislation to protect doctors who provide abortion pills to women in states with a ban.

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

But cases like the one decided next week could severely curtail abortion rights even in states with broad legal protections, experts warn.

“Even though California has built a fortress around its constitutional protections for reproductive freedom, that is [protections] they are at risk of being sought by anti-abortion states if the Supreme Court grants those states their immunity,” said Michele Goodwin, a professor at Georgetown Law and an expert on reproductive justice.

Legal experts are divided on how judges will decide the fate of a drug order email.

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

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

But he and others believe it’s no longer a matter of if — but when and how — drugs are restricted, including in California.

“This reduces the potential for legal disputes,” Goodwin said.

The most austere court judges can find reasons to act in the long-forgotten Comstock Act of 1873. The brainchild of America’s fervently anti-pornmaster Anthony Comstock, the law not only banned the posting of “Birth of Venus” and “Lady Chatterley’s Lover,” but also condoms, any device to remove the diaphragm or text that could use the diaphragm.

Although it hasn’t been implemented since the 1970s, the abortion ban remains on the books, experts say.

“The next step is in line with the Comstock Act, which Justice Alito and Thomas have already said,” Goodwin said. “If that’s the case, it’s like playing Monopoly – we can skip the mifepristone and go straight to contraception. The goal is to make sure none of this goes in the mail.”

That move would improve how Americans get abortions and birth control, and put LA County’s dispensary on state roads.

Although doctors in nearly a dozen states can safely provide abortions to women anywhere in the US, only a handful of specialty pharmacies fill those mail orders, Gomez explained. Among the largest is Honeybee in Culver City, which did not respond to requests for comment.

Even if the justices don’t reach Comstock, a ruling in favor of Louisiana next week could create a two-stage abortion system across California and other green states, experts say.

“The most painful case for people is the poor and the rural,” said Segall, an expert on the Supreme Court.

National data show that abortion patients are disproportionately poor. Many have also become mothers. Losing email access to mifepristone will leave many with a very painful, ineffective option while those with the time and means to access a clinic continue to receive the gold standard of care.

“There are important questions of citizenship at the heart of this,” said Goodwin, the constitutional scholar. “Under the 14th Amendment, women should have equality, citizenship, freedom. It’s as if the Supreme Court took a black marker and suppressed all those words.”

For Gomez and other providers, that’s tomorrow’s issue.

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