NH Republican Attorney General refuses to back medication abortion access amid Supreme Court review

During this morning’s meeting of the Executive Council, New Hampshire Attorney General John Formella revealed he declined to sign onto an amicus brief supporting access to the abortion medication mifepristone ahead of a Supreme Court review. 

This comes after a decision by the US Court of Appeals for the Fifth Circuit ordered the FDA to reinstate restrictions on Mifepristone—severely limiting access—on the grounds that it was unsafe. The fifth circuit’s ruling  would no longer allow the drug to be taken after seven weeks of pregnancy to be mailed directly to patients, or allow the drug to be prescribed by qualified clinicians other than a doctor. 

That decision has been put on hold, pending the Supreme Court’s decision, maintaining access to mifepristone until 10 weeks of pregnancy — for now.

To try and ensure that access isn’t restricted, officials across the nation have signed onto an amicus brief to express their support for maintaining access to the medication. The brief, signed by 24 states attorneys general — including the AGs of every other state in New England — argues that that ruling ignores years of evidence to the contrary that mifepristone is safe.

This case is particularly crucial as it could shape the future of abortion access in the country, especially in the wake of the overturning of Roe v. Wade. Mifepristone is the first of two drugs used in medication abortion and is used in over half of all abortions in the United States.

Formella was asked to sign onto the brief by New Hampshire civil rights groups, and his decision not to sign on was revealed through questioning by Democratic Councilor Cinde Warmington, who accused Formella, a Republican, of allowing politics to shape his work.

“Have you, at any point, consulted with the people that prescribe mifepristone in our state? Do you know how it’s prescribed in that state? Whether by a physician in person or remotely?” Warmington asked.

Formella said he had not done so.

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The exchange between the two grew heated as Councilor Warmington accused Formella of allowing his political agenda to dictate his legal work on behalf of the state.

“I think this is a really terrible decision on the part of your office. I think that this is exactly the worry that we have with having an attorney general’s office that puts politics over people,” Warmington said to Formella.

“You just attacked the integrity of my office, you attacked my integrity. We do not put politics over people at the Department of Justice. I do not put politics over legal analysis,” Formella said.

Formella is an appointee of Republican Governor Chris Sununu and prior to this role as Attorney General, Formella served as Sununu’s Legal Counsel,

Sununu, who signed New Hampshire’s first modern abortion ban into state law, defended Formella saying Warmington was “using a political argument to pressure the attorney general” and said Formella had the “exact right response.” 

Warmington, a known advocate for reproductive freedom, expressed deep concern over Formella’s refusal to sign the brief. 

“This is a critical moment for reproductive rights, and the refusal to join the amicus brief represents a failure to protect the fundamental freedoms of Granite Staters,” she said in a statement following the meeting.

Formella’s decision not to sign onto the brief highlights the ongoing tensions in New Hampshire surrounding abortion rights, particularly following the 2020 abortion ban signed by Gov. Sununu, and is likely to play an elevated role in this year’s governor’s race, which will determine who succeeds Sununu, who has chosen not to run for a fifth term.

The two Republicans running for governor this year both have staunchly anti-abortion records. While serving in the US Senate, Kelly Ayotte supported a national abortion ban and helped Donald Trump cement a conservative majority on the Supreme Court to overturn Roe v. Wade. Her primary opponent, former State Senator Chuck Morse, crafted New Hampshire’s current abortion ban and voted against adding exceptions for rape and incest to the bill.