By Ashley Murray and Jennifer Shutt, Nevada Current
This piece was originally published by the Nevada Current.

WASHINGTON — The abortion pill will remain available throughout the United States while a lawsuit over its approval and use works through the appeals process, the U.S. Supreme Court said Friday.

The court issued a stay that ensures access to mifepristone nationwide, reversing lower court rulings about when and how the abortion medication should be available in a case filed by anti-abortion organizations. The case is expected to ultimately be decided by the high court following appeals court deliberations.

Friday’s decision stems from a ruling in the U.S. District Court for the Northern District of Texas, where Judge Matthew Kacsmaryk, in early April, essentially overturned the U.S. Food and Drug Administration’s approval of mifepristone dating back to 2000. Kacsmaryk is a nominee of former President Donald Trump.

The 5th Circuit Court of Appeals in New Orleans then placed a partial hold on the district court ruling, following a request from the U.S. Department of Justice.

The ruling by that three-judge panel would have kept mifepristone on the market, but required use and administration of mifepristone to revert to the FDA’s pre-2016 instructions.

Mifepristone, which blocks a hormone called progesterone that is needed for a pregnancy to continue, is one of two drugs used in a medication abortion. Medical abortions make up more than half of abortions in the U.S., according to research by the Guttmacher Institute.

Friday’s highly anticipated ruling by the high court means the abortion pill will remain on the market for now without the limitations placed on it by the appeals court.

“The April 7, 2023, order of the United States District Court for the Northern District of Texas, case No. 2:22–cv–223, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit,” read the opinion, issued just before 7 p.m. Eastern on Friday.

Dissents from Thomas, Alito

The only noted dissents were from Justices Clarence Thomas and Samuel Alito.  Alito wrote that he would not have granted the stay for the lower court decision, arguing that the 5th Circuit Court of Appeals placed the suit on a “fast track.”

“(T)here is reason to believe that they would get the relief they now seek — from either the Court of Appeals or this Court — in the near future if their arguments on the merits are persuasive,” Alito wrote.

In a statement, President Joe Biden said the stay granted by the Supreme Court prevented a lower court from undermining the “FDA’s medical judgment and put women’s health at risk.”

“I continue to stand by FDA’s evidence-based approval of mifepristone, and my Administration will continue to defend FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs,” he said.

In his dissent, Alito argued that the Justice Department did not prove “that they are likely to suffer irreparable harm.”

Regarding a separate, contrary ruling issued by a federal judge in Washington state that preserves full access to the abortion pill in more than a dozen states, Alito said the argument that “chaos” could ensue from the opposite decisions “should not be given any weight.”

That separate case pertaining to access to mifepristone that contradicts the Texas decision came from 17 Democratic state attorneys general — and the District of Columbia — who filed a suit, arguing that the FDA wrongly imposed restrictions on mifepristone. Shortly after the Texas judge’s decision, Washington state judge Thomas Rice, an appointee of former President Barack Obama, ordered the FDA to preserve the status quo for mifepristone for those 17 states and the District of Columbia.

“The Washington District Court enjoined the FDA from altering its current practice regarding mifepristone — something that the FDA had never hinted it was contemplating,” Alito wrote. “The FDA did not appeal that appealable order, and when seven States that might take such an appeal asked to intervene, the FDA opposed their request. This series of events laid the foundation for the Government’s regulatory ‘chaos’ argument.”

Reactions pour in

“Nevadans and all Americans have made it clear they support a woman’s right to reproductive freedom,” said Nevada Democratioc Sen. Catherine Cortez Masto in a statement, “and I welcome the Supreme Court ruling keeping the abortion pill legal as the FDA defends this safe and effective medication in court. Far-right Republicans have made it clear they will stop at nothing to restrict women’s fundamental freedoms.”

But congressional Democrats also acknowledged that the decision to keep mifepristone on the market is a short reprieve.

Senate Majority Leader Chuck Schumer, a New York Democrat, said in a statement that the Supreme Court’s stay is “a temporary victory.”

“Make no mistake, extreme MAGA Republicans will continue to pursue their nationwide abortion ban until they impose their anti-choice agenda on all Americans,” he said.

The co-chair of the House Pro-Choice Caucus, Democratic Rep. Diana DeGette of Colorado, said in a statement that the stay “averted a disaster that not only would have put women’s health at risk, but also threatened to upend our nation’s entire drug-approval process going forward.”

“As the 5th Circuit now prepares to consider this case, I’m hopeful any future decisions regarding Americans’ ability to access this important medication are based solely on science, not politics,” she said.

Alliance Defending Freedom, the organization representing the plaintiffs, maintains the FDA approved the drug without safeguards, despite numerous studies showing the drug’s safety and effectiveness.

“As is common practice, the Supreme Court has decided to maintain the status quo that existed prior to our lawsuit while our challenge to the FDA’s illegal approval of chemical abortion drugs and its removal of critical safeguards for those drugs moves forward,” said the organization’s senior counsel, Erik Baptist, in a statement Friday night.

“Our case seeking to put women’s health above politics continues on an expedited basis in the lower courts. … We look forward to a final outcome in this case that will hold the FDA accountable,” the statement continued.

The 5th Circuit ruling, which will no longer go into effect, was unworkable, said the federal government, the manufacturers of the brand name and generic versions of the drug, and reproductive rights organizations.

It would have meant that mifepristone would no longer have been approved for up to 10 weeks gestation, but seven weeks.

Patients would have to attend three in-person doctor visits instead of one, all adverse events would have to be reported to the FDA, and dosage and administration of the medication would have reverted to pre-2016 instructions.

It would have prevented doctors from prescribing mifepristone via telehealth and prohibited delivery of the medication through the mail.

The generic version of mifepristone would no longer have been approved.

Oral arguments in the appeals court are scheduled for mid-May.

Ariana Figueroa contributed to this report.

By Michael Lyle, Nevada Current
This piece was originally published by the Nevada Current.

Lawmakers have advanced several tenant protection bills seeking to rein in practices that nickel-and-dime tenants through hidden fees for paying rent, applying for apartments or requesting maintenance repairs. 

Amid skyrocketing rents, which have increased between 20% and 30% in parts of the state since 2020, legislators have been pressed to find solutions to address rampant housing insecurity. 

Members of the Nevada Housing Justice Alliance, which includes the ACLU of Nevada, the Progressive Leadership Alliance of Nevada, Make the Road Nevada and the Culinary Union, have called for a variety of solutions from stabilizing rents to reforming eviction practices in order to address the state’s housing crisis.

Ben Iness, the coalition coordinator for the alliance, said in addition to rent increases, people also “face unknown, hidden and unexpected fees that can ruin folks and families” and potentially “push folks over the tipping point to face an eviction.” 

“I think the unifying theme is that when given an opportunity, without oversight or regulation landlords and property managers will make tenants foot the bill,” he said. 

Hidden fees

Several proposals targeting hidden and unexpected fees survived the recent bill deadline, in which legislation had to pass out of its respective first house.  

Assembly Bill 218 would require landlords to offer a free way for tenants to pay rent other than through an online portal, and mandate all non optional fees connected to the rental, such as sewer and water fees, be listed when advertising the property. 

Democratic Assemblywoman Venicia Considine, the bill’s sponsor, said the legislation seeks to make it “a deceptive trade practice to list the amount of rent that does not include all the non optional fees of rent,” which would allow tenants to seek legal recourse. 

The bill passed the Assembly 28-14 on Monday with all Republicans opposed. 

During its initial hearing in March, Republican Assemblywoman Heidi Kasama, who owns a property management company, argued some service fees associated with the rental fluctuate and that landlords need flexibility. 

The complaint was echoed by landlords and property management groups, who opposed the bill arguing there are certain costs, including trash and water services, that fluctuate. 

The bill only requires landlords to list “fixed mandatory” fees.

Kasama also called the section on deceptive practices “very aggressive,” adding she would rather see mediation between tenant and landlord than establishing means for tenants to seek satisfaction in courts. 

“In my experience as an attorney, I’ve seen many bills and laws that have great intention but when the bill is put into law there is no trigger, there is no way to enforce it by a private person when something happens,” Considine said. 

The idea behind the bill, she said, was to tamp down on what she called “resort style fees,” where landlords advertise rent for one price but then tenants later learn about other mandatory fees.

It’s a situation Considine, who is renting in Carson City because of the legislative session, recently experienced. She said she wasn’t told the initial full amount for her rental until she was about to sign the lease, which was higher than the price originally advertised. 

Considine said properties should display every associated fee and the total amount “from the get-go” and when landlords are advertising the property. 

"I think the unifying theme is that when given an opportunity, without oversight or regulation landlords and property managers will make tenants foot the bill."

– Ben Iness, Nevada Housing Justice Alliance

“This resort style of price listing can be detrimental to a person trying to plan their monthly budget when they are seeking a place to live,” she said. “This change will provide transparency and certainty for someone living paycheck to paycheck, which is a large segment of the population in Nevada.”

If a landlord still offers an online portal for tenants to pay rent, the bill would also require websites to clearly list the fees to pay with credit cards or debit cards and those fees can’t be higher than what it costs to process payment. 

“If you’re a landlord and you contracted with a portal or website to be a servicer between you and the tenant, the cost of making those payments shouldn’t be a profit center,” she said.  

Repairs

Senate Bill 381, which prevents landlords from charging tenants fees to perform repairs, passed the Senate unanimously on April 19.

“If you’re a landlord and you’re responsible for maintaining a piece of equipment in the home or maintaining habitability, you cannot pass those charges down to your tenant,” said Democratic state Sen. Dallas Harris, who sponsored the bill. “If by statute it is your responsibility, it is your responsibility, period.”

Though they supported the bill, during it’s first hearing two Republican state senators, Carrie Buck and Jeff Stone, both landlords, asked for clarification concerning repairs that are required because of the tenant’s actions.  

The legislation would allow landlords to charge fees if the maintenance task is “caused by the tenant’s own deliberate or negligent act.”

The Nevada Association of Realtors supported the bill while the Nevada State Apartment Association testified in neutral, though didn’t elaborate on its position. 

Application fees

Two bills seeking to rein in tenant application fees also passed out of their respective houses. 

Lawmakers unsuccessfully tried to regulate application and deposit fees in 2021. 

Democratic state Sen. Fabian Doñate, through Senate Bill 78, is seeking to prevent landlords from collecting unlimited application fees on a single unit by prohibiting charging fees to other prospective tenants “unless the application or applications for that dwelling unit have been denied.” 

The bill would require landlords to list fees either on the front page of the application or in an addendum that would be signed by landlords. 

SB 78 passed the Senate 14-7. Republican state Sen. Scott Hammond voted with all the Senate  Democrats in favor of the legislation.

A previous version of the legislation sought to extend the time period of no-cause evictions, when a landlord can evict a tenant without a reason after their lease expires, by 30 days, but it was stripped from the legislation prior to its first hearing. 

Assembly Bill 298 requires landlords to refund application fees if they don’t screen a tenant who applied, and requires the rental agreement to have an appendix that outlines all the fees associated with renting the place. 

The legislation, which is also one of several bills proposing rent stabilization, would also cap rent increases at 10% for people older than 62 or rely on disability insurance benefits from July 1, 2023 through Dec. 31, 2024.

The legislation passed the Assembly 36-6, with six Republicans opposed.  

Democratic Assemblywoman Sandra Jauregui, the legislation’s sponsor, said during the first hearing having it as a pilot program “gives us the opportunity to see if this is something that works for our state or not.”

The bill also received rare support from the Nevada Association of Realtors and the Vegas Chamber, both of which are opposed to broader rent stabilization efforts and clarifying state law to ensure cities and counties can address the housing crisis. 

It was still opposed by the Nevada State Apartment Association as well as various property management groups. 

Iness said all of these bills, along with rent stabilization proposals and eviction reforms, could work in unison to bolster tenant’s rights. 

“This could mean steady and consistent gains toward protecting Nevada tenants and really step by step, big or small, we’re moving toward a robust tenant bill of rights in a way,” he said. 

But not all measures bolstering tenant protections have survived. 

Source of income discrimination

Assembly Bill 176, sponsored by Democratic Assemblywoman Cecelia González, proposed  banning “source of income discrimination” and died in committee without receiving a vote. 

Similar to a bill González unsuccessfully brought forth in 2021, the legislation sought to prohibit landlords from discriminating against tenants who rely on housing vouchers, commonly known as Section 8, or other subsidies and income sources such as Social Security disability or child support payments.

The bill would have required landlords who denied a tenant a rental unit to provide a written notice that indicates the reason for refusal, which has never been mandated by law.

Iness said organizers “are baffled” that lawmakers have been able to advance rent stabilization legislation but not a bill to ban source of income discrimination.   

Though Iness remains hopeful, he views all proposals vulnerable until they are signed into law. 

“We know the power and influence of industry in the building,” he said. “Until they are through, they are not through and essentially at risk.”