Amid the flurry of conflicting and confusing court rulings over the past week related to the widely used abortion drug mifepristone that threaten to further restrict abortion access throughout the country, the status of the pill in Hawaii remains unchanged. It’s still legal and available through clinics and the mail.
But the legal landscape is rapidly evolving, and abortion providers say it’s difficult to predict whether there will be future implications for the pill’s availability in Hawaii and other states where abortion remains strongly protected.
“It’s an ever-changing and evolving situation,” said Mack Smith, communications manager for Planned Parenthood Great Northwest Hawai‘i, Alaska, Indiana and Kentucky.
At least for now, Hawaii isn’t following other Democratic states in scrambling to stockpile abortion pills as they wait for federal courts to wrestle over the U.S. Food and Drug Administration’s long-standing approval of the drug.
Last week Texas Judge Matthew J. Kacsmaryk invalidated the FDA’s 23-year-old approval of mifepristone, which is used to end a pregnancy. His decision, which was laced with terms used by abortion opponents such as “chemical abortion” and “unborn human,” was a major win for the anti- abortion movement that in addition to overturning Roe v. Wade in 2022 has sought to restrict access to abortion even in states with strong legal protections.
Medication abortions account for more than half of abortions nationwide, and the pills, which in recent years can be delivered through the mail, have significantly increased access to abortion in areas where there are legal restrictions or a lack of providers.
But on the same day that Kacsmaryk issued his ruling, a federal judge in Washington state issued a contradictory ruling in a separate but related case. Washington Judge Thomas O. Rice’s ruling barred the federal government from taking any action that would reduce access to mifepristone. The ruling applies to 18 states, including Hawaii, which had signed on to the case.
The two court rulings created confusion and left states and providers scrambling to discern their implications.
Rice issued an order Thursday reiterating that his injunction protecting access to the drug remained in force, regardless of the Texas court rulings.
“Judge Rice’s order makes very clear that there can be no change to mifepristone access in the State of Hawai‘i under the current legal framework,” said Deputy Attorney General Erin Lau, Hawaii’s lead attorney in the Washington case, in a news release following the order. “The injunction Judge Rice issued protects mifepristone access in our state, notwithstanding the Fifth Circuit’s recent, separate order.”
Then on Friday the U.S. Supreme Court issued a stay in the Texas case until Wednesday that for now preserves the status quo that existed before Kacsmaryk’s April 7 ruling.
Experts say that the legal status of mifepristone is expected to ultimately be decided by the Supreme Court, but it’s not clear how long that could take.
Even if mifepristone is taken off the market, the implications of which have roiled drug companies, Planned Parenthood and other abortion providers have stressed that another drug used in medication abortion, misoprostol, will remain available. Both drugs are commonly used in conjunction to terminate a pregnancy, but misoprostol can also be used alone, though it is slightly less effective and causes more pronounced side effects, including nausea and cramping.
Still, Smith said the potential implications of the Texas ruling remain troubling for states such as Hawaii, where access to abortion has been poor on the neighbor islands and rural areas of the state that lack providers.
“We know that this is a major issue, especially in a place like Hawaii where we have concerns with access,” Smith said. “We know that this is going to hit hardest in a place like Hawaii, but we are continuing to fight this decision and we will not stop until we are certain that there are no more options left.”
Stockpiling
In recent days, governors in states including California, Washington, Massachusetts, New York and Maryland announced that they were stocking up on abortion pills, including mifepristone and misoprostol, given the uncertainly of the legal landscape.
For example, in Washington, Democratic Gov. Jay Inslee used the state’s correctional system to purchase 30,000 doses of mifepristone and the University of Washington to purchase an additional 10,000 pills, a supply that is projected to last four years.
“Women in Washington are under attack from a multiheaded Hydra beast who is coming after their rights,” Inslee told reporters. “We have to be creative because there are tentacles coming at us from every direction.”
In Massachusetts the governor has asked the University of Massachusetts to purchase a one-year supply of mifepristone. And in New York, Gov. Kathy Hochul announced that the state’s health department would purchase a five-year supply of misoprostol.
For now there is no similar effort in Hawaii. The state Department of Health’s Family Health Services Division said it is not planning to stockpile medications. “We (FHSD) have no funds, capability, or authority to purchase, store, and/or distribute medications,” the division said via email.
DOH did not respond to follow-up questions about what authority would be needed to purchase the pills.
A spokesperson for the University of Hawaii said the university also has no plan to stockpile the drugs.
Dr. Reni Soon, chair of the Hawaii section of the American College of Obstetricians and Gynecologists, said the Women’s Options Center in Honolulu, which provides abortion, did order several months’ worth of mifepristone because of the uncertainty. But she said she would welcome it if the state took the initiative to shore up supplies.
“I would love for the state to take more of a role in that because it would show our state leaders are as equally outraged about this decision as those who provide this care,” she said, referring to the Texas case.
