Clinicians offering abortion in Mass. resist limits on abortion pill

Update: In response to an appeal from the Biden administration, U.S. Supreme Court Justice Samuel Alito on Friday stayed the Texas appeals court's decision on mifepristone until 11:59pm on April 19th. Alito's order effectively lifts limits on prescribing the abortion medication while the Supreme Court reviews documents in the case.

Hospitals and clinics that perform most of the abortions in Massachusetts say they will disregard restrictions on use of the abortion pill mifepristone, detailed in a federal appeals court decision late Wednesday.

The U.S. Court of Appeals for the 5th Circuit is the latest to weigh in on a quickly developing legal dispute that was immediately elevated to the Supreme Court.

The Appellate Court allowed continued sales of the medication, but a three-judge panel said mifepristone can only be prescribed to end pregnancies up to seven weeks, not 10 as previously allowed.

The panel also said the medication can no longer be prescribed via telehealth. Instead, patients must receive the pills in person. In addition, the court's decision barred nurse practitioners and physician assistants from ordering mifepristone for patients, only doctors can do that.

Administrators at Planned Parenthood League of Massachusetts said they are still analyzing the implications for telehealth prescribing, but they expect to continue offering mifepristone for abortions up to 10 weeks. The organization also plans to continue allowing nurse practitioners and physician assistants to prescribe the drug.

“Until we hear differently from the state or from our legal team, we’ll continue to follow the current guidelines.”

Dr. Danielle Roncari, Planned Parenthood League of Mass.

Abortion is legal in Massachusetts up to at least 24 weeks of pregnancy, and later in certain circumstances. State officials and health care providers have pledged to safeguard the full range of abortion care for residents, including medication abortions in the first 10 weeks.

“Until we hear differently from the state or from our legal team, we’ll continue to follow the current guidelines,” said Dr. Danielle Roncari, vice president of medical services at Planned Parenthood.

Roncari and some other clinicians who provide abortions said their actions are in line with the common practice of "off-label" drug use — or use of a medication beyond what is spelled out on the label. These clinicians said they are also reassured by state abortion laws and ongoing support from Massachusetts Gov. Maura Healey.

Earlier this week Healey announced the state had procured a stockpile of mifepristone.

“We will continue to use every power available to us to ensure that radical judges elsewhere in the country cannot limit access to safe, effective abortion care here in Massachusetts,” Healey said Thursday in an email.

Boston University health law professor Nicole Huberfeld agreed that clinicians who continue to prescribe mifepristone into the 10th week of a pregnancy will not likely face any penalties.

“That’s especially true in states like Massachusetts where access to abortion not only remains lawful but is protected under the law,” she said.

Federal enforcement through the Food and Drug Administration could become more aggressive with a new White House administration, but the question of whether mifepristone will remain legal may be settled before the next presidential election.

The Biden administration has filed an appeal of the 5th Circuit ruling to the U.S. Supreme Court.

Abortion opponents said Massachusetts providers who don’t accept limits to mifepristone prescribing are putting their patients’ health at risk. These advocates argued that offering mifepristone later in the first trimester and over the phone, without a physical examination, may increase the risk of infection, the need for a surgical abortion, and the likelihood of an emergency room visit.

“While Massachusetts health care providers may choose to disregard the science,” said Catherine Glenn Foster, who advocates against abortion around the world, “that is not what will be best for women’s health.”

Numerous studies published in peer-reviewed medical journals have found abortions caused by pills are safe and effective in the vast majority of cases. In one study, 2.3% of women needed surgery after taking mifepristone.

Many providers in Massachusetts are frustrated that federal judges are weighing the validity of medical evidence rather than letting the FDA do that job.

“I’m not sure if these justices have watched a lot of ‘Gray’s Anatomy’ and that allows them to now be doctors,” said Dr. Katharine White, an obstetrician and gynecologist at Boston Medical Center. “I’ve watched a lot of ‘Law & Order’ and I don’t think that makes me able to practice law.”

Danco Laboratories, the maker of Mifeprex, one brand of mifepristone, said it will continue to ship orders, even though the Appeals Court’s decision referenced a 150-year-federal law that prohibits intentionally mailing abortion-related materials.

At hospitals and clinics that offer mifepristone in Massachusetts, attorneys were still reviewing the Fifth Circuit decision. A spokesperson for Mass General Brigham said in an email that the state’s largest hospital system will continue to prescribe mifepristone for abortions up to 10 weeks, but isn’t sure nurse practitioners or physician assistants will be allowed to do so.

The spokesperson said Mass General Brigham has not confirmed continued receipt of Mifeprex. Earlier this week, the network said it had significantly increased its supply “due to uncertainty around the drug.”