Wyden, Rosenblum defend access to abortion medication

By PETER WONG
Oregon Capital Bureau

U.S. Sen. Ron Wyden and Oregon Attorney General Ellen Rosenblum spoke out against one federal lawsuit and in favor of another affecting access to a long-approved medication used to induce abortion.

Though both have spoken out previously, Wyden and Rosenblum were joined Sunday, March 12, by two obstetricians/gynecologists at Oregon Health & Science University and a nurse practitioner for Planned Parenthood, all of whom said that the medication has been proven safe in combination with another drug to end a pregnancy.

They were cheered on by a group of about two dozen supporters across the street from the Sellwood CVS Pharmacy in Southeast Portland. Unlike Walgreens, which has stopped distributing the medication in 21 states where Republican attorneys general have threatened to sue pharmacies, CVS Health and Rite Aid are national chains that have not followed suit.

Hearings are scheduled soon for the competing lawsuits.

Judge Matthew Kacsmaryk, an appointee of President Donald Trump, is set on Wednesday, March 15, in Amarillo, Texas, to hear a challenge to federal approval for the drug mifepristone. The Food and Drug Administration allowed its use in 2000, extended the gestation period from 7 to 10 weeks in 2016, and permitted its prescription without an in-person doctor visit in 2021. Kacsmaryk opposed abortion rights and gay rights before Trump’s appointment.

“The judge in Texas did not even pretend to have a record of mifepristone showing damage to patients,” Wyden said.

Taken in combination with misoprostol, it was used in about 60% of Oregon abortions in 2021, according to Rosenblum.

“We know that taken together, it is the most effective way to help with miscarriage management as well as abortion,” said Dr. Maria Rodriguez, one of the OHSU doctors. “We do not need judges, lawyers and politicians practicing medicine without a license in Texas or anywhere else in our country.”

Misoprostol can be used by itself, though it may have side effects.

“If the judge says that mifepristone is illegal, we are going to provide care no matter what,” Dr. Alison Edelman, the other OHSU doctor, said.

“For individuals in Oregon, I think it is just a catastrophe to think that someone in another state would think we cannot make choices for ourselves and not make choices with our health care providers.”

Mary Stark is a nurse practitioner for Planned Parenthood of the Columbia/Willamette. She is based in Bend, still far from Oregon’s border with Idaho, which has a near-total ban on abortions that took effect two months after the U.S. Supreme Court (in Dobbs v. Jackson Women’s Health Organization) overturned a 50-year-old guarantee that abortion is protected under the federal Constitution. The high court’s decision returned the issue to states, but Stark said abortion opponents want to go further with lawsuits such as the one in Texas.

“They haven’t been able to get rid of abortion everywhere, like they want to,” Stark said.

The Oregon Legislature repealed abortion penalties in 1969, and guaranteed access to abortion in a 2017 law. Pending legislation in House Bill 2002 would go further.

Oregon weighs in

Oregon is among 22 states that have joined a legal defense of FDA authority by the U.S. Department of Justice, although the states are not parties to the Texas case. Alliance Defending Freedom, which advocates for conservative causes, represents four organizations seeking to overturn FDA approval.

Oregon and Washington led 18 states that filed a countersuit last month against the FDA, arguing that federal restrictions on the drug are unnecessary. A federal judge in Washington state has set a March 28 hearing.

Rosenblum said that if the judge in Texas rules against the FDA — and national access to the drug is impeded — she and Washington Attorney General Bob Ferguson are prepared to ask the judge in their lawsuit for a temporary restraining order to allow the FDA and pharmacies to continue to distribute the drug.

“I am fearing the worst. So let’s do what we can. We are not going to back down,” she said. “The federal government has known for years that this drug is absolutely safe and effective. The restrictions on it have no basis in medical science.”

Unlike the Texas lawsuit, she added, the Oregon/Washington lawsuit has attached a couple of affidavits from OHSU doctors attesting to the effectiveness of the medications.

Assuming they can get a restraining order or a preliminary injunction, Rosenblum said the conflicting rulings would likely be reviewed by different federal appeals courts — the conservative 5th Circuit Court of Appeals for the Texas lawsuit, the more liberal 9th for the Washington/Oregon lawsuit — and eventually the U.S. Supreme Court.

Full circle

Rosenblum and Wyden were classmates at the University of Oregon law school back in 1973, when the U.S. Supreme Court legalized abortion nationwide in Roe v. Wade. She was in her first year, Wyden his second.

“We never imagined we would find ourselves in the circumstances here today, 50 years later,” Rosenblum said. “This case is so politically motivated that it’s hard to talk about it in terms of logic and evidence.”

Wyden, meanwhile, has urged President Joe Biden and his administration to ignore an adverse ruling against the FDA. He said the Texas judge has gone to great lengths to shield the proceedings from public scrutiny in a larger city.

He said:

“Amarillo may be more than 1,600 miles from this street corner and my house in Southeast Portland, but I want to send a message to Judge Kacsmaryk and the plaintiffs who brought this illegitimate case to hear loud and clear.

“He is plotting to sweep this mockery of the rule of law under the rug. It is one more step in an anti-democratic takeover of American institutions … We are going to make sure that everybody in America understands just how destructive the judge’s actions are.”