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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. By this Friday, the abortion pill mifepristone might become largely unavailable, you know that, if the federal court ruling in Texas last Friday night stands. The consequences of that are so huge because medication abortions are the majority of abortions in the United States today. Now, just since yesterday's show, the Biden administration has appealed for at least a longer-term stay of the Texas judge's ruling until the ultimate decision in the case, probably by the Supreme Court.

There's also the competing decision by a federal court in Washington State that protects mifepristone access in 17 states. The Supreme Court will probably have to resolve the conflicting decisions. Unusual for the Supreme Court, that decision could come in a matter of days, we are told, because of the extreme implications of the Texas ruling.

Also since yesterday's show, as we continue to follow these developments, some blue state governors are taking emergency measures. As the Washington Post describes it, California Governor Gavin Newsom announced yesterday that he has secured an emergency stockpile of up to 2 million doses of misoprostol, the pill that's typically used alongside mifepristone in a two-step regimen to perform medication abortions.

Misoprostol can be used on its own to terminate a pregnancy, but the Washington Post says studies show it is less effective than the two-step regimen and usually causes more cramping and bleeding. In Massachusetts, according to this article, Governor Maura Healey announced that she is stockpiling mifepristone itself with 15,000 doses, enough to last a year in the state of Massachusetts.

That stockpile is expected to arrive this week. With us now on the legal and medical implications of all this as we continue to follow this story is Nancy Northup, president and CEO of the Center for Reproductive Rights, which has been a party to Supreme Court abortion rights cases, and Dr. Kristyn Brandi, MD OBGYN and abortion provider in New Jersey and board chair with Physicians for Reproductive Health. Nancy, welcome back. Always good to have you. Dr. Brandi, thank you for your time today. Welcome to WNYC.

Dr. Kristyn Brandi: Thanks for having us.

Nancy Northup: Thank you. Good morning.

Brian Lehrer: Dr. Brandi, can you expand on that Washington Post passage on how the two abortion medications mifepristone and misoprostol are used separately or in conjunction with each other in your or other doctor's practice?

Dr. Kristyn Brandi: Absolutely so. In our gold standard regiment of medication abortion, we typically use two medications, mifepristone, which is the one in question in this court case, as well as misoprostol. We've been using this regiment for over 20 years now and have great evidence to support that it is safe and effective. That being said, we can use that second medication, misoprostol, alone in a couple of doses, and that is also safe, effective, and has been in use in other places across the country and abroad.

Brian Lehrer: What would be the consequences for women? The article said in that passage that I read, it usually causes more cramping and bleeding.

Dr. Kristyn Brandi: Right. It's unfortunate that the second medication, misoprostol, while it works really well, does have more side effects than the combination of the two medications. Patients that take this regiment alone may have more cramping, may have more nausea, more vomiting. It may just be a less pleasant experience for them. This is why it's really important for us to keep medications that we know are safe and effective and have benefits like minimal side effects like mifepristone on the market.

Brian Lehrer: Nancy, one question some listeners had yesterday, and I'm not sure it was fully answered, was why the antiabortion group only went after mifepristone in this lawsuit and not both abortion drugs. Do you at the Center for Reproductive Rights understand their strategy in this respect?

Nancy Northup: Well, in some ways, they really are going after both in this lawsuit. The basis for the lawsuit is they're challenging the FDA's approval of mifepristone over 22 years ago. That's the base of the lawsuit. However, they also have raised the Comstock Act in their lawsuit and this is a 19th-century morals law that has not been in effect and certainly not used with respect to legal abortion, but there are suggestions that they may use that to try to go after both the misoprostol as well as the mifepristone.

Their strategy is to ban medication abortion nationwide because one of the things that is so maddening, frankly, about the Dobbs decision was that the pretext there was, "Well, we're going to just send this back to the states ad each state can decide unacceptable in and of itself." Because we now have abortion banned in 13 states with really harmful consequences, but this isn't about letting states decide. We've got strong states like New York and California and Illinois and Michigan and so many more who support abortion rights, but there's an attempt now to remove what is the most popular.

More than 50% of people choose medication abortion off the shelves in all the states. That's the ultimate goal. Again, as we're talking today, I want to make sure your listeners understand this lawsuit is completely baseless. The decision has no grounding in law or fact, and it is just really disturbing that we are even in the situation that we are, that this opinion has issued and that now the Department of Justice has to be up in front of the US Court of Appeals with this circuit trying to get it stayed.

Brian Lehrer: We'll see if the Supreme Court agrees with you, ultimately, I guess, and listeners, just like yesterday, we know some of you, like Nancy just now sounded, you have your heads exploding over this prospect of a federal ban on all abortion medications or on the abortion medication mifepristone, I should say, even in states that have retained abortion as a state right since the Dobbs decision last year removed it as a federal constitutional right.

Listeners, what would you like to say or ask our guests Nancy Northup, president and CEO of the Center for Reproductive Rights, which has been a party to Supreme Court abortion rights cases, and Dr. Kristyn Brandi, MD OBGYN, and abortion provider in New Jersey, and board chair with Physicians for Reproductive Health. 212-433-WNYC, 212-433-9692. Nancy, let's stay on the Comstock Act, which you brought up for a minute. Some of our listeners might have read Michelle Goldberg's column about that, this 19th-century federal law called the Comstock Act.

Michelle quotes in her New York Times column the legal scholar Mary Ziegler saying the emphasis on the Comstock Act could appeal to self-proclaimed textualists on the Supreme Court, like Brett Kavanaugh or Neil Gorsuch, who emphasize the ordinary meaning of words in a statute outside the context of legislative intent or history. Could you unpack that for us? Tell people a little bit more about this 19th-century law and how you think it might play at the Supreme Court?

Dr. Kristyn Brandi: Yes, well, there is Anthony Comstock, who it's named after, was a person going after what he saw as vice in the late 19th century, and this law was prohibiting things to be sent in the mail. Information about sexuality, information about contraception makes a reference to abortion, but in the last 150 years, it's not been used to address legal abortion or things that go through the mail that are legal, that have to do with reproductive health care or sexual health.

All of a sudden, there's this attempt to resurrect this old vice law to try to ban all forms of medication abortion from being delivered through the mail systems, and it's completely baseless. There's a ruling out of the Department of justice from the Office of Legal Counsel that makes clear that the Comstock Act, to the extent it applies to anything, it applies to where abortion is illegal, not where it is illegal, and that is how courts have looked at the issue. So, again, it's this attempt to move us way backward, right into the 19th century and try to stop the provision of well-established medication abortion states where it's legal.

Brian Lehrer: I think Michelle Goldberg's New York Times column implies if I'm reading the words that I just read on the air right, that she thinks Gorsuch and Kavanaugh might uphold the Texas Federal judges' ruling based on the Comstock Act. Elie Mystal, legal analyst for the Nation magazine was on the show yesterday and he was thinking, Kavanaugh and Gorsuch might be the weak links in the conservatives chain along with Justice Roberts, that those three might defect and preserve Mifepristone access in America. What's your take?

Nancy Northup: Look, if we go back to this opinion that was issued on Friday, and again, this is only about Mifepristone the Friday decision by the judge in Amarillo. Any judge, any Supreme Court justice that is following administrative procedure law, and even the laws about who can bring lawsuits at all, is going to reject this claim and is going to overturn this lower court decision.

As a just threshold issue, the anti-abortion rights organizations and doctors who brought this lawsuit incorporated themselves in Amarillo, Texas for the purpose of getting this particular judge. They don't have the cognizable claim that allows them to be in federal court, to begin with. All of us can't just walk into federal court one day and say, "Wow, we don't like this drug approval or this decision by this federal agency," and bring a lawsuit.

We would have the entire regulatory system tied up in court all the time. Number one, they don't even belong in court. They don't have what's called standing to be in court, but then on the merits, there is just no reason to go back to 2000 and question the decision there. There've been over 100 studies on the safety and effectiveness of Mifepristone spanning 30 years, 26 countries.

They all conclude that Mifepristone is safe and effective means of ending early pregnancy. To this point, it's not just the movement that's saying this. There was a very important letter yesterday that was in support of the FDA's authority that was signed by 400 executives in the pharmaceutical industry, including the CEO of Pfizer. They came out very strongly to condemn the ruling of the trial judge in Amarillo and called for the reversal of it.

They point out the pharmaceutical industry leaders that, again, Mifepristone has been proven by decades of data to be safer than Tylenol. Nearly all antibiotics and insulin and the decision is ignoring decades of scientific evidence and legal precedent. Again, the judges on the Fifth Circuit should be throwing this out. Any Supreme Court justice that is following our legal proceedings and laws and policies should be throwing this out and if this is just a decision without any basis in law, in fact.

Brian Lehrer: Elie Mystal mentioned on yesterday show that studies have shown Mifepristone that there haven't been comparative studies side by side. If you look at all the studies individually, Mifepristone has been shown to be safer than Viagra a drug that men take in the reproductive context. Maybe there's even a sex discrimination case there. Dr. Brandi, let me bring you in on the points that Nancy was just making.

You're a doctor, not a lawyer, but are you watching medical arguments in this legal battle? Does it look to you like this hinges at all on a medical judgment of Mifepristone that your experience as a practicing OB-GYN could inform?

Dr. Kristyn Brandi: Thanks for that. I mean, you're right. I'm not a lawyer, but in reading this case, the first thing that came to mind was just feeling so insulted by the way that it was written. It was clearly written in a way that was inflammatory, trying to evoke anti-choice emotion really disparaging to providers like myself that just want to provide the best medical care for patients, for scientists that have studied this for decades, and really to patients that are just everyone in communities trying to get the care that they need.

The way that this case was written was just so disparaging to all of these communities. It was really heartbreaking. In addition to that, it's also just really distressing to see how it just accepted all of this rhetoric and just ignored all of the facts. It ignored scientific language. It ignored the decades of research around this medication. It just was really insulting to the science and how we've done so much research to prove this medication works well.

It actually took us 20 years. This medication was invented in the '80s, but we hadn't gotten it in the United States until the year 2000. We had 20 years of data even before it made the shore here. It's really disheartening to think about the case and how it just ignores all of the science. I think also to Nancy's point, I'm worried about what this looks like for the future of medicine and how this will impact care.

We see that this is setting a precedent where a judge with no medical background, no expertise in this area can decide whether or not the FDA a established, respected organization can approve medications or not. I worry about what's next. We talked about misoprostol, the other medication potentially being a target, but I see this mirroring a lot of the laws we're seeing now in states around gender-affirming care.

Any care that's really stigmatized could be a target. I think of things like HIV medication and PrEP. Even the COVID vaccine, they could question that process and have that medication overturned. I really worry about how-- Not only it's insulting now, but what are the long-term implications of this law and how drugs are approved, and how I can right now trust the FDA that has gone through the science to show that the medications I prescribe have a good basis and evidence and now I'm not so sure about if that will be the process moving forward.

Brian Lehrer: Dr. Brandi, I think Caroline in the Bronx has a medical question for you. Caroline, you're on WNYC. Thank you for calling in.

Caroline: Hi. I was wondering are these medications used also to aid in if one's having a miscarriage. I was wondering if it's also used for non-abortion care.

Brian Lehrer: Thank you. Doctor.

Dr. Kristyn Brandi: Thanks for that question. That's a great point that Mifepristone, that drug in this case is also used as the gold standard treatment for a miscarriage. When we pull this medication from the shelves, it not only impacts abortion patients but also miscarriage care. It has some other uses things around labor care, cervical dilation, and another form of this medication is also used in endocrine disorders.

I'm not clear about whether or not that will impact that particular use of this drug, but again, we talk about the broad implications of what this could do if we lose misoprostol, that second medication that is our standard regiment for labor induction in the country, for anybody that's undergoing an induction of labor. Again, we think about this in the context of abortion.

Abortion patients absolutely should be able to access the medicines that they need, but it has much more implications on medicine across the board, which is really concerning.

Brian Lehrer: Here's another medical question from Marcy in Morristown, you're on WNYC. Marcy. Hi there.

Marcy: Hello. Thank you very much. Is this the morning-after pill also?

Brian Lehrer: Dr. Brandi.

Dr. Kristyn Brandi: [chuckles] Thanks for that question. I get this question all the time. This is a different medication. Mifepristone is the medication that we use once someone is confirmed to be pregnant, to end their pregnancy. The morning-after pill is a medication similar to other types of birth control that prevents someone from getting pregnant. In fact, if you give someone the morning-after pill when they're already pregnant, it will not do anything.

It will not impact that pregnancy. It's an important distinguish to know that these two medications are separate. Again, I do worry about how the implications of this lawsuit could impact other people. If people think that the morning-after pill causes an abortion, then this may be a medication that they may target next.

Brian Lehrer: While we're in the medical lane here, here's a clip of Democratic Senator Amy Klobuchar of Minnesota on NPR'S Morning Edition yesterday. Senator Klobuchar is on the Judiciary Committee, so she's relevant in that respect with this going through the courts, but she's making a medical argument in part of this clip. Listen.

Amy Klobuchar: This drug has been pointed out by your correspondence have been used in half of the abortions in the US. It's been on the market for more than 20 years after a four-year approval process by the FDA, and it's used safely in over 60 countries. This is just another example of extremists trying to take away women's rights to make their own decisions about their healthcare. We think they should be able to make those decisions, not one judge in Amarillo, Texas, and certainly not politicians.

Brian: Senator Klobuchar Morning Edition yesterday. Nancy, you are a lawyer, not a doctor, but there was some loss of medicine, some politics in that statement from Senator Klobuchar. How much is the proven safety record of mifepristone, which we've been just describing, central to winning its continued availability in court? Or is that not even something that the justices are going to eventually consider?

Nancy Northup: Well, let me just start again that this case is brought under the Administrative Procedure Act. First of all, for your audience, this isn't a constitutional challenge or has something to do with the constitution. It has to do with whether the Food and Drug Administration in its ordinary course of its mission, which is to approve drugs for the market that are safe and effective, whether when they considered this and then made some other decisions years later around misoprostol and how it's used, whether or not they followed their own procedures and weighed the evidence. It has to be arbitrary and capricious for them to prevail in this lawsuit.

First of all, just on the merits, you heard it, again and again, this morning, the science and the data and the safety records there, it was there in 2000, but it's also been there in the 23 years after that, when 5 million women in the United States have used it for abortion. [00:21:35] Yes, the merits will be looked at because you do, when you challenge a decision by a administrative body, you look at whether it was arbitrary and capricious whether it was based on the evidence. I want to turn this again because it was so powerful again, this letter yesterday signed by 400 pharmaceutical and biotech companies and investment firms, because they talked about their concern.

First of all, they do actually weigh in to say that the evidence is there that mifepristone is as safe as, or safer than Tylenol but also they're concerned about what this will mean for a reliable regulatory process for drug evaluation and approval. In this letter that was again signed by the CEO of Pfizer, the president of Biogen, and many, many others, that they're very concerned that any medicine is at risk for the same outcome of mifepristone if this case were to prevail. They unequivocally support the continued authority of the FDA to use its expertise to regulate new medicines.

They actually say in their letter, we can't stay quiet because this decision is putting an entire industry focused on bringing new drugs to market on medical innovation, which we all want to see new drugs that are effective and safe to be on the market. They can't stay quiet because of how outrageous this decision is.

Brian Lehrer: We're continuing a minute with Nancy Northup, president and CEO of the Center for Reproductive Rights, and Dr. Kristyn Brandi, a New Jersey abortion provider, and OB/GYN and board chair with Physicians for Reproductive Health. When we come back in just about a minute or so we're going to take an interesting-looking call from Sarah in Woodside, Queens who wants to ask about a legal precedent that might help save mifepristone from the legalization of cannabis. We'll see how she thinks they relate legally. Stay with us.

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Brian Lehrer on WNYC, as we continue to follow developments day by day in this week where the future availability of the abortion drug mifepristone is hanging in the balance with the one-week stay just a week from last Friday to this coming Friday that the federal judge in Texas who declared Mifepristone to be illegal has given it while appeals and stuff go on.

My guests are Nancy Northup, president and CEO of the Center for Reproductive Rights, which has been a party to Supreme Court abortion rights cases, the Supreme Court seems like where this is headed and Dr. Kristyn Brandi MD, OB/GYN, and abortion provider in New Jersey and board chair with Physicians for Reproductive Health. Our phones are packed, but you can get in as people finish up, 212-433-WNYC or a tweet @BrianLehrer. We're watching our mentions go by Sarah in Woodside. You're on WNYC. Hi, Sarah.

Sarah: Hi. How are you doing?

Brian Lehrer: Good. What you got?

Sarah: I just wanted to ask, since cannabis is not, as far as I'm aware, is not FDA approved and we've left it up to different states to decide if this is accessible for recreational use, how is that different from mifepristone and can states handle it that way and states can legalize mifepristone in certain cases just like we do for cannabis, even though it's not federally approved?

Brian Lehrer: Great question, Nancy, are there different methods to get to approval, different paths and is cannabis a model?

Nancy Northup: What an interesting question. Thank you for that. Cannabis was both-- Marijuana was both criminalized and then decriminalized as a drug, a recreational drug. I think it's not in the same category here as medication that is used for a purpose here for pregnancy termination and other uses of misoprostol. I think it's not a separate route. It does need to be approved by the Food and Drug Administration to be safe and effective on the market for prescription by doctors.

Brian Lehrer: Interesting. Okay, another possible path there. Mark in Manhattan, you're on WNYC. Hi, Mark.

Mark: Good morning. I'm just wondering if you could clarify what New York State is doing in terms of stockpiling these drugs and allowing women to come to New York for abortions from states that don't allow it. What's New York doing?

Brian Lehrer: Well I know Governor Hochul has vowed to do what she can. Let's see. Looking at a public radio report from Rochester right now, it says, Hochul said she would push legislation that would require insurance companies to cover misoprostol the other drug, which can be used alone, but is more effective when taken with mifepristone. I think that's the only explicit thing that she said.

Dr. Brandi, maybe you can shed some local light on this because I read that Washington Post reporting earlier on the Governors of California and Massachusetts taking actions to stockpile one or another of the abortion medications. You practice in New Jersey, do you know if Governor Murphy is taking any such action or your organization calling on him to?

Dr. Kristyn Brandi: That's a great question. I haven't heard anything currently in New Jersey about stockpiling, although I've heard other states working on this. It's a really murky issue because even if we stockpile this medication so that we have enough to serve the people that we can, it's still unclear whether or not if this medication goes away, if the FDA approval goes away, should we be using this medication. I will say that doctors in general are rule followers.

If we know that this medication is no longer approved by the FDA and we are giving a medicine that is no longer approved, I know that many doctors will be dissuaded from giving this medication even if we have it in hand because of the power and the prestige that the FDA has. That being said, I think we should be doing everything we can not only to stockpile with mifepristone but actually more misoprostol that second medication while we have it, while it is FDA approved.

We want to make sure we can use that regimen and because that regimen does require a couple of doses, typically we need to increase the manufacturing of that medication and make sure it's available to everyone that is going to have to use it now more readily for medication abortion and miscarriage care.

Brian Lehrer: What happens in the short term, Dr. Brandi? Because one of the outcomes by the end of this week could be that the appeals process continues and it will take a while, however long it takes. Some people say only a few days, maybe it'll take weeks or months, I don't think we really know, to get to the Supreme Court and have a final resolution. In the meantime, that Texas judge might say mifepristone is illegal while the appeals process goes on. That's basically what he ruled on Friday and he is going to revisit it this Friday. Could you ignore it and continue to practice using the drug?

Maybe you heard Congresswoman Alexandria Ocasio-Cortez among others saying, look, at least until there's a Supreme Court ruling, doctors could just ignore this and the FDA could just ignore this. Do you have an opinion?

Dr. Kristyn Brandi: Sure. I think that is something that some doctors may do during this time. It's complicated. I think that particularly people that are providing abortion know that what we do is highly scrutinized. Particularly in places where there's a lot of question about whether or not abortion will remain legal, there's lots of pushes of getting doctors licenses revoked for providing abortion care, even though it's legal.

They're trying to find ways to target abortion providers so that we can't provide care. I think that people that are providing abortion care are going to be very vigilant and trying to follow the rules as best they can. Even though I know that there's calls for us to ignore these rules in this case right now, I would say that once we heard that this case was being heard, many providers in the movement, including people within the Physician's Reproductive Health Network, have been preparing.

Many of us already have the Misoprostol-only regiments ready to go to be able to provide to people. If there's no delay in care that people could still get medication abortion management, it will just look a little bit different. I know that some people also, if talking about side effects and talking about the experience with Misoprostol doses, they may choose procedural abortion instead of medication abortion. Many clinics have been trying to figure out how we can manage more people choosing procedural abortion, if that is something that we can offer in our space. We've been already preparing for this moment, and we will continue to do that work while we need to, but it's still really unclear.

Brian Lehrer: Nancy, any legal advice you can give practitioners like Dr. Brandi?

Nancy Northup: Well, the Center for Reproductive Rights has been counseling our clients. We represent a lot of independent abortion providers across the country. That's how we came to represent the Jackson Women's Health Organization and took that case all the way to the Supreme Court in the Dobbs case. I won't comment on the advice that we're giving to our clients, but I want to say this, I think it's very important right now that we not all get ahead of ourselves and that we keep all eyes where it belongs on accountability of the Court of appeals to reverse this decision.

There are going to be the Department of Justice already filed its brief yesterday in the US Court of Appeals. The court has ordered that the plaintiffs in this case, the anti-abortion organizations and doctors file their brief by midnight tonight. I think we're also going to see a lot of amicus. Those are friend of the court briefs. These are organizations and viewpoints that have a particular perspective like the American Medical Association and the organization of Obstetricians and Gynaecologists. I'm expecting the pharmaceutical companies to weigh in. We're going to have all those voices coming in to the appeals process.

It's critical that this case be succeed by the Department of Justice because doctors should not be put in the position as Kristen was just talking about, of having to weigh their options. The patient should have all of the scientific-based options for medication abortion. I do want to keep us this week very focused on how wrong this decision is and the need for the Court of Appeals and the Supreme Court if the Court of Appeals doesn't do its job to overturn it.

I also just wanted to mention to your question that you got on what is from Mark on what is New York State doing is to also let people know that the Attorney General of New York Tish James, immediately when the Dobbs decision came down, pulled together a reproductive healthcare task force of 24 national law firms and eight reproductive rights organizations, including the Center for Reproductive Rights to launch a legal hotline.

If any of your listeners out there have questions in terms of people coming to York to have seek abortion care, if they're providers in New York who we're providing abortion care. Go to the Attorney General's website, and there's a hotline and lawyers are standing by to answer questions about being able to access care in New York.

Brian Lehrer: Martha and Maplewood wants to share an experience, I think. Hi, Martha, you're on WNYC. Thanks so much for calling in.

Martha: Hi, Brian. Yes, I just wanted to share my experience with a medication abortion. I got pregnant in 2010. I was in between birth control at the time, but with a serious partner who is now my husband and I got pregnant. I went to Planned Parenthood in New York, which was a great place to be. I had the choice of having a surgical abortion or a medication abortion, and I chose the medication abortion because it allowed me to go through that experience in the comfort of my own home.

It was a really hard day, [laughs] but I got through it and I had support. I've gone on to have two really healthy children. I just want to give voice to this being a real thing for people. It's very safe. I know that your guests have already spoken about it compared to Tylenol, to Viagra, but that was my experience.

I want to say one other thing, which is just that around this conversation of abortion, from my experience and with friends and sisters, when you really want to have a child when you're ready, when you're emotionally and financially ready to have a child, you often know that you're pregnant right away, like at four weeks. When you are not ready to have a child, when you have an irregular period, or when you are having issues with birth control, you often do not know that you are pregnant until six, seven weeks. I just want to give voice to that because we know as we-- [crosstalk]

Brian Lehrer: There are all those six-week bans popping up right in some of the red states.

Martha: Exactly.

Brian Lehrer: Martha, thank you. Thank you. I'm sure that was not easy to share your personal experience like that. Dr. Brandi, what were you thinking as you listened to Martha, including that idea of you're pregnant quicker if you want the baby.

Dr. Kristyn Brandi: Thanks so much, Martha, for sharing your story. I think it echoes a lot of the stories that I hear every day from people that seek this care, that know what they need, that I go through the options with them and that I can talk to them on a equal playing field about what's best for them and for their family. How any type of ban, including this potential ban on the use of mifepristone, will impact that conversation, that decision.

That's not how healthcare should be. People should be able to make the decisions that they need based on what they see is their options. We shouldn't be limiting options, we should be expanding options for people in healthcare. As far as the point about knowing when people are pregnant, I've had patients that have had irregular cycles, that have had fibroids, which makes their uterus larger than normal, and so they don't really notice it.

Their stomach growing bigger. I've had people that knew that they were pregnant early, but couldn't get to me because they had to figure out childcare, had to figure out days off of work. There's so many logistics already within healthcare, and particularly now in states that have abortion bans, that is all exaggerated, even more so that people have even more hoops to jump through to get to care. That I don't want people to go through all that to get to me, and then for me not to be able to provide the best care possible for them, including with this medication. It's really heartbreaking to think about how these conversations, these real life experiences, are going to be impacted by the loss of this medicine.

Brian Lehrer: One more call. Rachel and Brooklyn, you're on WNYC. Hi, Rachel.

Rachel: Hi. Talking about what New York and New Jersey are doing to protect access to this life-saving medication. I'm wondering if anyone knows why those states aren't part of the [unintelligible 00:38:29] of Mifepristone lawsuit that was in Washington state.

Brian Lehrer: Nancy, that's for you. A lot of people around here are confused by that. There are these conflicting rulings by way of background, 17 states for the moment are protected by the Washington State Federal Judge's ruling in terms of Mifepristone availability. New York and New Jersey, very blue, very abortion rights states were not among the 17 states that filed that suit, protecting them for now. Do you understand why not?

Nancy Northup: I can't speak for New York or New Jersey, but I do think it's-- and we'll see what happens next. It's often the case that others who have standing to join a lawsuit can join even after the initial lawsuit is filed. We'll see what happens next on that. Yes, it's important for your listeners to know that there is a separate lawsuit in the state of Washington that was filed in which a judge on Friday issued an opinion saying The FDA needs to not make any changes around Mifepristone while the lawsuit in Washington State is pending.

That's really the right, and yesterday, the Department of Justice asked for more clarification on that ruling from the judge in Washington state because they do have these conflicting rulings. It just brings up the important point that again show how outcome-oriented, how ideological, how predetermined, the judge in Amarillo was because what he's granted here is what's called a preliminary injunction. Preliminary injunctions are for the purpose of keeping the status quo when a lawsuit is filed so that it can be worked out, and changes are not made before the actual merits of a decision.

Here, the plaintiff has not met any of the standards for a preliminary injunction, which, among other things, you need to show that you're going to succeed on the merits, but you also need to show that there's an emergency need for the public interest. None of these are met here. The status quo, as the Washington judge knows, and ruled correctly is to keep things as it has been for 23 years, which is mifepristone has been approved based on the evidence by the FDA.

Brian Lehrer: Nancy Northup is President and CEO of the Center for Reproductive Rights. Dr. Kristyn Brandi, MD, OB/GYN, abortion provider in New Jersey. He is also Board Chair with Physicians for Reproductive Health. Thank you both for joining us.

Kristyn Brandi: Thanks so much.

Nancy Northup: Thank you.

 

 

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