Gov. Ned Lamont and Attorney General William Tong recently joined complimentary briefs in a Supreme Court case affecting the continued availability of mifepristone — sometimes referred to as the “abortion pill.”
As part of the Reproductive Freedom Alliance, a coalition of 22 governors representing states and territories around the country, Lamont joined an amicus curiae, or friend of the court, brief in U.S. Food and Drug Administration, et. al., v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine. Tong joined 21 attorneys general in filing a complimentary brief in the case.
Both cases involve access to the drug mifepristone, which is used for inducing medication abortions. Challengers in the case, including the Alliance for Hippocratic Medicine, argue that the drug, which was initially approved for use by the Food and Drug Administration (FDA) in 2000, is unsafe. The FDA issued rulings expanding access to the drug in 2016 and 2021.
The Supreme Court will review appeals brought by the Biden administration and Danco, a drug manufacturer that distributes mifepristone under the brand name Mifeprex, during oral arguments on March 26. The appeal comes after an August 2023 ruling from the U.S. Court of Appeals for the 5th Circuit rejected arguments that the FDA’s initial approval of the drug should be repealed but invalidated the agency’s actions expanding access to the drug. Mifepristone currently remains more widely available due to the Supreme Court issuing a hold on the lower court’s decision, but whether that access will be maintained in the long-term hinges on a forthcoming ruling from the highest court.
The brief submitted by the Reproductive Freedom Alliance in support of Danco, the FDA and continued widespread access to mifepristone argues that access to the drug is a “critical component of the reproductive healthcare regime in states in which abortion is legal, including Reproductive Freedom Alliance member states.” Limiting availability to the drug, the alliance argues, would exacerbate existing doctor and healthcare shortages, especially in rural communities, and make it difficult for governors to protect public health.
While governors are tasked with protecting public health, most states do not, the brief notes, have the resources to act as “mini-FDAs” and make determinations about the safety and effectiveness of prescription drugs. “Governors therefore rely heavily on the federal/state division of authority, which tasks FDA with studying the safety and effectiveness of prescription drugs and making approval decisions based on its knowledge and expertise, and tasks Governors with developing and executing solutions in reliance on FDA’s approval decisions and expert judgment.” the brief states.
Many of the states within the alliance have abortion protections codified within their state constitutions, which, the brief states, has led governors within the alliance to take actions to protect continued access to reproductive healthcare. Examples cited in the brief include actions taken by nearby Massachusetts, which purchased 15,000 doses of mifepristone to ensure availability of the drug. Massachusetts governor Maura Healy also signed an executive order in April 2023 aimed at protecting access to medication abortion and providing support to public universities in the state for the purpose of developing readiness plans for medication abortions.
“In order to fulfill those mandates, Reproductive Freedom Alliance Governors depend on their ability to implement policies that accurately reflect the needs of those who seek reproductive healthcare in their states. And that ability relies on a consistent supply of FDA-Approved medications, and on the stability of the FDA approval decisions that allow for broad access to critical medication.”
The complimentary brief submitted by Tong and 21 other attorneys general makes similar arguments about the safety and efficacy of mifepristone and the importance of its continued availability to reproductive healthcare, noting the states represented by the brief rely on the availability of the drug in order for hospitals, clinics and other healthcare facilities to operate.
The brief also argues that returning to restrictions to the dispensation of mifepristone in place prior to 2016, which would require in-person visits and followups and would require only physicians to prescribe the medication, would place a strain on state healthcare facilities, in particular by eliminating telehealth clinics and imposing costs and delays associated with having to travel to facilities where care is available.
The brief cites data suggesting that, should the availability of the drug be limited, 56 percent of facilities providing abortions in Connecticut would have to cease providing services. That estimate makes Connecticut the third-most affected state among states where medication abortion is legal, behind Maine at 86 percent and California at 60 percent.
According to a 2018 report from the Office of Legislative Research, Connecticut is one of 16 states that cover abortions for Medicaid recipients. In all HUSKY Health programs, the state’s Department of Social Services covers the costs of abortions that are medically necessary. It does not receive federal Medicaid reimbursement in all cases because a federal law known as the Hyde Amendment limits state reimbursement to abortions in cases where the mother’s life is endangered or in cases of rape or incest.
Following the leak of a draft opinion in Dobbs v. Jackson, which overturned Roe v. Wade, Connecticut passed two laws in May 2022. One, as part of the 2022 budget implementer, expanded the types of medical professional able to perform medication abortions, including nurse-midwives and physician assistants. The other created protections for individuals traveling to Connecticut to seek an abortion from states where the procedure is banned.
In 2022, Tong created a Special Counsel for Reproductive Rights within the attorney general’s office and announced the state would participate in a free legal hotline providing guidance to Connecticut residence seeking information about abortion access. In 2023, he also issued a formal opinion on the legality of mifepristone in the state.
In a statement announcing the alliance’s amicus brief, Lamont called the legal case seeking to restrict access to mifepristone a “politically motivated” attempt to “restrict the ability of Americans to make these decisions themselves. “I stand with governors from across the country in calling on the Supreme Court to protect the ability of Americans to access this medication, and recognize the independent scientific authority of the FDA.” Lamont said.
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