As the fate of the abortion medication mifepristone is battled in the courts, Maryland is exploring the possibility of stockpiling the pill. Photo by Robin Marty/Flickr Creative Commons.

UPDATE: Gov. Wes Moore announced Friday that Maryland will stockpile mifepristone amid the ongoing legal challenges over the drug.

Maryland could stockpile the abortion medication mifepristone after two federal court judges ruled in separate decisions last week on whether to restrict access to the pill.

“Since day one, Governor Moore has made it clear that he will protect the reproductive rights of Marylanders – this includes access to mifepristone,” Gov. Wes Moore’s office said in a statement to Baltimore Fishbowl.

“As other states work to tear down reproductive protections and attack access to care and medication, the Moore-Miller administration is exploring options to implement more safeguards for all Marylanders—including working with the Department of Health to explore stockpiling mifepristone,” the governor’s office added.

A federal judge in Texas ruled Friday that one of the two drugs most commonly used in medication abortions (as opposed to surgical abortions) should be pulled from the market. Judge Matthew J. Kacsmaryk, who sits on the U.S. District Court for the Northern District of Texas, ruled that the Food and Drug Administration’s approval of the drug mifepristone in the year 2000 was invalid.

The FDA site explains, “Mifepristone is a drug that blocks a hormone called progesterone that is needed for a pregnancy to continue. Mifepristone, when used together with another medicine called misoprostol, is used to end a pregnancy through ten weeks gestation (70 days or less since the first day of the last menstrual period).” It has been used safely in the United States for 23 years, and for about a decade longer than that in Europe.

The Texas judge’s decision could invalidate FDA approval of the drug and impact access to it across the country. If so, Marylanders would no longer have access to mifepristone.

It is still possible to have a safe medication abortion with misoprostol alone, but using the drug in combination with mifepristone reduces the chances of the patient needing a surgical procedure. Another benefit of using the two medications are combined is that the patient requires fewer doses. Use of misoprostol alone for abortion requires more doses, and may have more painful and unpleasant side effects.

Kacsmaryk stayed the ruling for seven days to give the Department of Justice the chance to appeal, which U.S. Attorney General Merrick Garland said his department will do.

“The Justice Department strongly disagrees with the decision of the District Court for the Northern District of Texas in Alliance for Hippocratic Medicine v. FDA and will be appealing the court’s decision and seeking a stay pending appeal,” Garland said in a statement Friday. “Today’s decision overturns the FDA’s expert judgment, rendered over two decades ago, that mifepristone is safe and effective. The Department will continue to defend the FDA’s decision.”

Additionally, a court in Washington state issued a ruling Friday that legal experts described as a “dueling injunction,” forbidding the FDA from pulling mifepristone from the market.

Washington state was joined by 16 others, including Maryland, in filing its injunction.

While this issue plays out in the federal courts — first in two separate federal circuit courts of appeals, then likely the U.S. Supreme Court — the governors of Massachusetts and California have already begun stockpiling mifepristone in the event the drug is eventually pulled from the market.

In Maryland, abortion is legal until the point of fetal viability, meaning the fetus can survive outside the uterus with medical help. In April 2022, the General Assembly passed the Abortion Care Access Act — and later overrode a veto by Gov. Larry Hogan — to expand the type of medical practitioners who were permitted to perform abortions.

This expansion of access was a move by Maryland lawmakers in anticipation of the Supreme Court’s expected ruling in June 2022 on a Mississippi abortion law, which many predicted (correctly) the Court would use as an opportunity to not only drastically restrict abortion access nationally, but to overturn Roe v. Wade.

While Republican-led state legislatures around the nation enacted or reverted back to more restrictive abortion laws, as the Supreme Court had returned power to individual states, Marylanders have continued to enjoy relatively safe access to abortion services and care.

According to a New York Times tracker, “most abortions are now banned in 13 states,” 11 of them allowing no exception for rape or incest, and in Georgia abortion is banned at “about six weeks of pregnancy, before many women know they are pregnant.” Four more states have abortion bans between 15 and 20 weeks, and eight other states have bans that have been blocked and/or are working their way through court challenges.

Maryland is one of 20 states where abortion is legal with new protections since Roe fell.

In 2024, Marylanders will vote on a referendum on whether to amend the state’s constitution to protect abortion rights.

As other states seek to restrict abortion access, the Moore administration is working to strengthen reproductive rights in Maryland.

Moore’s office said, “The governor will continue to do everything in his power to ensure that Maryland remains a safe haven for abortion and reproductive health care access, including signing into law a comprehensive and historic reproductive rights legislative package that will provide concrete protections for Marylanders’ reproductive freedoms; protect private medical information; expand access to reproductive health care services; and enable a ballot measure to enshrine reproductive rights in the Maryland constitution.”

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