As a federal legal battle threatens to revoke the decades-old approval of a widely used abortion medication, Vermont lawmakers are making last-minute amendments to this year’s major abortion legislation to protect access to the pill within the state.
On Wednesday, legislators in both the House and Senate tacked on amendments to S.37 and H.89 — two bills known colloquially as abortion “shield” bills — to add protections to the medication mifepristone, even if its Food and Drug Administration approval is removed or restricted as a result of ongoing litigation.
The Senate gave final approval to H.89 in a voice vote Wednesday after advancing it by a 26-4 vote Tuesday.
The primary purpose of H.89 is to shield Vermont health care providers from investigation, interrogations, subpoenas, extradition or arrest by out-of-state entities if they provide reproductive care to a patient who traveled to Vermont from a state where such care is illegal. As defined in the bill, reproductive care includes abortions, as well as gender-affirming care for transgender patients.
On Wednesday, lawmakers added another definition of legally protected reproductive care to H.89 and S.37: medication abortion.
“‘Reproductive health care services’ includes medication that was approved by the U.S. Food and Drug Administration (FDA) for termination of a pregnancy as of January 1, 2023, regardless of the medication’s current FDA approval status,” reads part of H.89’s amendment approved by senators Wednesday.
Vermont lawmakers made the move in response to a legally unprecedented court ruling issued earlier this month by U.S. District Judge Matthew Kacsmaryk — a Trump-appointee based in Amarillo, Texas — which sought to revoke the FDA’s 23-year-old approval of mifepristone to terminate a pregnancy.
Mifepristone is one of two medications used in tandem to induce abortions, most often in the first 11 weeks of pregnancy. Medication is the most common method for abortion nationwide. In Vermont in 2020, more than 75% of abortions were carried out with medicine.
With this week’s amendments, Vermont’s Legislature is among the first in the nation to put forward bills explicitly protecting mifepristone in direct response to the Texas case.
Access to mifepristone remains status quo nationwide at least until Friday at 11:59 p.m., according to a U.S. Supreme Court order issued Wednesday, pausing any changes to mifepristone’s FDA approval status as the case makes its way through the federal appeals process. And Vermont is party to a separate lawsuit in Washington state, in which U.S. District Judge Thomas Rice most recently ruled that the FDA musn’t alter access to the drug in the 17 states (including Vermont) and District of Columbia who have signed onto the Washington suit.
Vermont lawmakers and providers are making preparations in case the Supreme Court strikes down or severely tightens mifepristone’s FDA approval status nationwide. In a floor speech Wednesday, Sen. Ginny Lyons, D-Chittenden Southeast, called mifepristone “exceedingly safe and effective.” She said the Texas case threatens access to the drug even in Vermont, where the right to an abortion is enshrined in the state constitution.
“As this litigation plays out … Vermont really feels compelled to take steps to protect access to care through the proposed amendment that we’re putting in place,” Lyons said.
H.89 now heads back to the House. If the lower chamber signs off on the Senate’s changes, it will land on the desk of Gov. Phil Scott, who is expected to sign it into law. The House is set to vote on S.37, the companion shield law, this week.