Sen. Catherine Cortez Masto, D-Nev., responds to a question during a student interview at Mater Academy Mountain Vista campus Tuesday, Jan. 10, 2023. Cortez Masto is part of a group of Democratic U.S. senators trying to protect women’s reproductive rights by sponsoring a bill allowing purchase of a daily-use contraception over the counter.
Friday, April 21, 2023 | 6:16 p.m.
Abortion advocates in Nevada got a break Wednesday after the U.S. Supreme Court issued a stay in a lower court’s ruling that sought to reverse the Food and Drug Administration’s approval for a drug used in more than half of all terminated pregnancies nationally.
On Wednesday, the high court ruled against an April 7 decision from U.S. District Court Judge Matthew Kacsmaryk to reverse the FDA’s approval of mifepristone, which was first OK’d for medicated abortion in 2000. Two justices voted to allow the restrictions to take effect, Samuel Alito and Clarence Thomas, but the court did not release a full vote breakdown.
President Joe Biden praised the high court for keeping mifepristone available while the court fight continues.
“The stakes could not be higher for women across America. I will continue to fight politically-driven attacks on women’s health. But let’s be clear — the American people must continue to use their vote as their voice, and elect a Congress who will pass a law restoring the protections of Roe v. Wade,” Biden said in a statement.
The lawsuit remains ongoing, and Wednesday’s ruling still leaves open the opportunity for the court to ultimately ban mifepristone. A federal appeals court ruled last week that mifepristone would remain available while the case continues, but with limits. The appeals court said that the drug can’t be mailed or dispensed as a generic and that patients who seek it need to make three in-person visits with a doctor, among other things.
Wednesday’s ruling marks the second time within the last year the Supreme Court has weighed in on the abortion issue. Last June, the court moved to overturn its landmark 1973 ruling in Roe v. Wade, which for nearly 50 years presumed the constitutional right for women to seek an abortion. In the months since, 13 states so far have either had so-called trigger laws go into effect or have otherwise passed legislation severely restricting access to the procedure — often before many women become aware they are pregnant.
The ruling also appears to affirm a separate ruling this month by a different U.S. District Court judge in Washington that allowed Nevada and 16 other states to preserve mifepristone availability.
Nevada’s top Democratic lawmakers praised the decision, many of whom had signed onto an amicus brief to challenge Kacsmaryk’s ruling. U.S. Sen. Catherine Cortez Masto, Nevada’s senior senator offered her criticism for a push by far-right officials to restrict access.
“Nevadans and all Americans have made it clear they support a woman’s right to reproductive freedom, and I welcome the Supreme Court ruling keeping the abortion pill legal as the FDA defends this safe and effective medication in court. Far-right Republicans have made it clear they will stop at nothing to restrict women’s fundamental freedoms, and I will continue to fight to protect women and make sure they can make their own health care decisions,” said Cortez Masto.
Health experts say the most effective and safe way of undergoing a medication abortion is first taking mifepristone and then following up with a dose of the drug misoprostol. That type of two-step medical abortion can generally be used in the first 10 weeks of gestation, according to FDA guidelines.
Josh Sharfstein, a doctor and former principal deputy commissioner of the FDA under former President Barack Obama, said Tuesday if the court would have sided with Kacsmaryk, it would have opened the door for anyone to challenge FDA approval of any drug.
“It’s not a stretch to say that if a judge can wake up in the morning and decide they want to take a certain medication off the market or fundamentally alter how it’s accessible … for any reason, whether ideological or through influence, it throws open the fundamental foundation of drug regulation,” Sharfstein told reporters.
And that would create a dangerous precedent, he continued: “This decision risks embolden other courts to block access to FDA approved drugs and treatments for reasons having nothing to do with their safety or efficacy. If this judge's ruling is allowed to stay, and patients may no longer have the security of knowing that determinations about drug safety ultimately lie with the experts.”
The generic version of mifepristone makes up two-thirds of the supply in the United States, its manufacturer, Las Vegas-based GenBioPro Inc., wrote in a court filing that underscored the perils of allowing the restrictions to be put into effect.
In last week’s ruling from the 5th U.S. Circuit Court of Appeals, the court also said the drug should only be approved through seven weeks of pregnancy for now, even though the FDA since 2016 has endorsed its use through 10 weeks of pregnancy. The appeals court is set to begin hearing the case May 17.
Carrie Flaxman, the senior director of public policy litigation and law at the Planned Parenthood Federation of America told reporters at a virtual news conference Tuesday the back-and-forth between courts is causing nothing but “chaos and confusion” for those seeking the medication.
“This judicial pingpong game is impacting the accessibility of safe, effective, decades-long approved medication,” Flaxman said. “Patients deserve access to the medication they need, and providers should be able to provide that medication without unnecessary interference from the judiciary, or politicians, for that matter.”
Nevada voters in 1990 approved a ballot measure protecting the right to abortion through 24 weeks gestation. That measure could only be undone by a similar voter referendum. Lawmakers in Carson City this session, however, have worked to advance a measure that would enshrine the right to an abortion in the state constitution.
If passed, SJR 7 would again need to clear both chambers of the Nevada Legislature in the 2025 session before it would be put on the 2027 general election ballot.
The Legislature is also considering a pair of bills that would further bolster reproductive health care access here in Nevada. Earlier this month the Senate Commerce and Labor committee voted to pass SB131, which would shield out-of-state abortion providers or seekers coming to the state from legal action where abortion has been criminalized. That bill is sponsored by nearly the entirely of the Democratic conference.
The Assembly is also considering AB383, which would establish the Right to Contraception Act. If passed, it would prohibit locales within the state from “implementing any limitation or requirement” that singles out contraception or “substantially” burdens access to contraception or the ability of a health care provider to give contraceptives.
The Associated Press contributed to this report.
