Democratic AGs play defense as pro-life pregnancy centers lawyer up on 'abortion pill reversal'

The tide may be turning in the battles between Democratic attorneys general and pro-life pregnancy centers that promote so-called abortion pill reversal, with one AG throwing in the towel to avoid an unfavorable court ruling and another facing a second lawsuit after losing an early attempt at alleged "forum shopping" in the first.

A day after Washington AG Bob Ferguson confirmed the closure of his investigation into Obria Group and Obria Medical Clinics PNW for potential consumer fraud, the Alliance Defending Freedom filed a federal suit against New York AG Letitia James on behalf of a different set of pregnancy centers than the Thomas More Society's clients suing James in state court.

Democratic AGs insist that it's not only false but dangerous to tell women that taking supplemental progesterone, a natural pregnancy hormone, may block the effects of pregnancy-ending mifepristone, thus violating consumer protection and business fraud laws.

Yet a Yale Medicine reproductive health expert said he'd tell his own daughter to take progesterone if she accidentally ingested mifepristone while pregnant.

The dispute is particularly relevant in light of the Food and Drug Administration's relaxed conditions for obtaining mifepristone, now under review by the Supreme Court, and the likelihood that unwilling fathers could surreptitiously slip abortion drugs into their partner's drinks.

A Texas lawyer convicted of repeatedly drugging his wife's drinks with misoprostol, the companion drug to mifepristone, received a relatively light six-month prison sentence in February as part of a plea deal to avoid trial for "felony assault to induce abortion."

Ferguson didn't say when or why he ended his investigation, which included allegedly burdensome and intrusive civil investigative demands sent to the centers and third-party vendors in 2022.

But his May 23 letter followed new allegations by Obria PNW that its insurer refused to renew its policy because of his investigation. Its ADF lawyers said Tuesday that Obria had to spend seven times more on new coverage.

While Ferguson said Obria can show its insurer his letter to "provide certainty as to the status of this investigation" – making an exception to his office's policy of not giving "formal notice" of closure – the AG fought to exclude the allegations in April when Obria sought permission to file a supplemental complaint.

He argued its new allegations only showed a "possibility of future harm," which "entirely ignores the central harm" of Obria losing insurance – "a present injury" stemming from Ferguson's investigation – and unavoidably paying more in premiums going forward, "an imminent injury supporting [legal] standing," ADF wrote in an April 12 reply to Ferguson's April 8 opposition.

Obria's own insurer confirmed it wouldn't renew coverage because of the investigation, which Obria disclosed in its renewal application, and "it is quite easy to infer that a court order" against Ferguson would "materially change an insurer’s appreciation of risk," lower Obria's premiums and convince currently reluctant underwriters to grant coverage, ADF said.

The 9th U.S. Circuit Court of Appeals already rejected Ferguson's argument "that a loss of insurance coverage is not an injury" in ADF's challenge on behalf of a church to the Evergreen State's abortion coverage mandate for employers who cover maternity care, it said. (The docket shows that case is "being considered" for oral argument in August or September.)

U.S. District Judge Tiffany Cartwright approved a stipulation by the parties Tuesday that they will "meet and confer and submit" a proposed schedule for filing the supplemental complaint and Ferguson's motion to dismiss it by June 7.

New York AG James tried to move the state lawsuit against her to Manhattan, where she filed her own suit against pro-life pregnancy centers after they preemptively sued her in Rochester in response to her "notice of intent to sue" letters.

Both sides filed motions to consolidate each other's cases in their preferred venues, with Heartbeat International, CompassCare and a dozen members of a "pregnancy help collective" arguing James's venue choice was "the latest malicious salvo" in her campaign to intimidate them into silence on abortion pill reversal. 

Manhattan is the "most inconvenient and costly venue possible for these impecunious charities," and James has a Rochester office "just down the street" from most of the centers, reads the Thomas More Society's May 7 filing. The AG's move is particularly rich because the state's appeals courts consider her "principal offices" to be in Albany, also upstate.

Justice Sam Valleriani of Monroe County Supreme Court, which is a trial court, rejected James's application last week, saying she "engaged in effectively the same practice" she accused the pregnancy centers of doing – "rac[ing] to the courthouse with a preemptive filing" to secure the preferred venue.

The intent-to-sue letters do not qualify as "commencement" of legal action, Valleriani wrote, and moving the case to Manhattan would create an "avoidably unfair logistical disadvantage" for the pregnancy centers.

ADF's federal lawsuit against James, filed Friday, is on behalf of Gianna's House, Options Care Center and the National Institute for Family and Life Advocates, whose name adorns a 2018 Supreme Court precedent upholding the free speech rights of pregnancy centers.

"The nonprofits receive no economic benefit from speaking about progesterone or from referring women to the physicians who prescribe it," the accompanying memorandum of law for preliminary injunction says. "The challenged use of progesterone is perfectly legal under state and federal law, and numerous studies have shown it is both safe and effective."

Yale Med's Harvey Kliman, who told The New York Times in a 2017 feature on early efforts at abortion pill reversal that the progesterone protocol "makes biological sense," was using his "intuition" but it's backed by science, the memo says.

The ability of supplemental progesterone to counteract mifepristone before taking misoprostol, which induces contractions, goes back to a 1989 study of rats that was reaffirmed just last year in another study of rats, "known for their physiological similarity to humans," ADF wrote. An observational woman study in 2018 gave similar results.

Doctors have legally prescribed progesterone "off label for various uses for decades, including to prevent miscarriages and preterm births. And the U.K. public health authority recommends it for "women with early pregnancy bleeding and a previous miscarriage," deeming it safe for both mother and baby, the memo says.

The plaintiffs deserve an injunction against threats from James because they "have a First Amendment right to speak truthfully, including about off-label uses of prescription medicines," ADF said.

James is committing "unlawful viewpoint discrimination that selectively enforce[s] the statutes against pro-life pregnancy centers while promoting the misleading speech of pro-abortion clinics" and violating the Free Exercise clause "through her hostility to the pregnancy centers’ pro-life, Christian viewpoint," the filing says.