BOSTON (State House News Service) – A federal judge hadn’t even ruled yet on suspending approval of the abortion pill mifepristone in April when Gov. Maura Healey orchestrated a major reserve shipment of the drug through the state’s flagship university. But despite pledges of public records transparency, any paper trail of how that response came together is still being kept locked away.
The governor was quick to act, and the ink had barely dried on the judge’s decision when Healey fired off a four-page executive order aimed at preserving legal access to the abortion pill in Massachusetts.
A public records response from the governor’s office offers a glimpse into some of the people looped into the development of that order. But it’s unclear how much of the mifepristone collaboration happened over email, or what other options may have been weighed, after the administration — which previously advertised that it would “follow the public records law and provide more transparency” than previous governors — claimed several exemptions and withheld documents.
U.S. District Court Judge Matthew Kacsmaryk made his ruling Friday, April 7, and emails from top Healey administration officials show them corresponding with reproductive rights advocacy groups and seeking feedback on a draft executive order over the Easter weekend. Emails also document the planning of a large press conference staged that Monday, April 10 on the State House steps.
The communications don’t shed much light, though, on how Healey was able to quickly draft an executive order and secure a large mifepristone stockpile through the University of Massachusetts, achievements she announced on Monday, April 10 and which appear to have been in the works before the ruling came down.
Healey’s announcement that day also included news that health care providers in Massachusetts had agreed to purchase additional quantities of mifepristone to make available for patients, that the state was dedicating $1 million to support providers contracted with the state with paying for the doses, and that Healey interpreted a 2022 abortion access state law “as protecting access to medication abortion, including mifepristone.”
Some state entities, including the governor’s office and the Legislature, have long claimed blanket exemption from the public records law.
Leading up to her inauguration, Healey told a local talk show that she would not claim that exemption. Back on the same radio show a month later, she elaborated that “there may be certain instances where there are certain things that cannot be provided to the public,” like security and personnel matters, or “deliberative policymaking.”
“Governor Healey intends to follow the public records law and provide more transparency to the Governor’s Office than ever before,” her website says, while noting that “[b]y law, records held by the Office of the Governor are not subject to the Massachusetts public records law.”
Healey’s website says it “encourages you … to make a public record request,” and lists a designated contact person — the Records Access Officer — as legal assistant Paige Ferreira. According to state payroll records, Ferreira has not worked in that office since partway through 2022.
The News Service sought access to any emails mentioning mifepristone between April 1 and April 10 sent or received by Healey, her chief of staff, senior advisor, deputy chief of staff for legislative affairs, and communications director.
The gap in records that the governor’s office was willing to release leads to a gap in the publicly visible timeline, and Healey’s voice is absent from the less than 50 emails made available.
Responding to the request, Jesse Boodoo of the governor’s legal office (who had apparently taken over for Ferreira) said that some emails had been withheld, without specifying a number. Three reasons were given: “attorney-client privilege,” and public records law exemptions “C” and “D,” which are meant to shield individuals from “an unwarranted invasion of personal privacy” and prevent premature disclosure of in-development policy positions.
The secretary of state’s guide to the public records law says exemption “C” deals with privacy. It covers information like “personnel and medical files” along with “intimate details of a highly personal nature.”
And on exemption “D,” which the secretary’s office dubbed “the deliberative process exemption,” the guide says the exemption applies to “[o]nly portions of records that possess a deliberative or policymaking character and relate to an ongoing deliberative process.”
The week before her State House press conference about mifepristone, Healey reportedly asked the University of Massachusetts to order 15,000 doses as a stockpile for Bay State providers. That request, or any response from UMass officials, does not appear in the records Healey’s office released.
The stockpile shipment arrived on April 12, the governor’s office said at the time, seeming to place a bookend on those deliberations rather than portray them as “ongoing.”
Out of the emails the administration handed over, the first reference to “mifepristone” in the month of April came on April 6, when work on Healey’s proposal was evidently already underway.
“[Healey senior advisor] Gabe Viator briefed my team on the announcement in the works on mifepristone access and I just wanted to connect for comms purposes! We’re thrilled about the action the Gov is taking and will do whatever we can to boost this announcement,” Caroline Kimball-Katz of the Planned Parenthood League of Massachusetts wrote to Healey’s press secretary Karissa Hand on the afternoon of Thursday, April 6. “We are prepping our own press release on it with quotes from leadership for after the news hits. PPLM would be happy to provide a quote for a release your team puts out if it would be helpful, just lmk!”
Nothing else from that Thursday appears in the 49 documents released by Healey’s office.
On Friday, April 7 — the day Judge Kacsmaryk in Texas suspended FDA approval of the abortion medication — Healey’s senior advisor, Gabrielle Viator, reached out to Rachel Sussman of the Planned Parenthood Action Fund.
“I have taken my AG’s Office hat off and joined Governor Healey in her new administration. I wanted to reach out and flag for you some actions that we are planning to take in MA in anticipation of the upcoming [Texas] decision re: Mifepristone,” Viator wrote at 12:29 p.m. “We expect to announce early next week: That we have partnered with UMass and providers across the state to acquire stores of mife to meet anticipated demand for well over a year; and An Executive Order that will interpret the prescribing and dispensing of mife as protected under last year’s Shield Law such that there will be no in state consequences for licensure and such for those who continue to use mife stock regardless of outcome of case.”
Later that same hour, Healey communications director Jillian Fennimore connected with representatives of Reproductive Equity Now, Planned Parenthood, and the ACLU of Massachusetts looking to talk that afternoon.
“As I’m sure you may have heard, Governor Healey is hoping to make an announcement on Monday at 1230 in advance of the mifepristone ruling out of Texas. Would love to touch base at your earliest convenience to get on the same page about messaging, availability etc.,” Fennimore wrote.
Later in the day, Fennimore followed up on the timeline for nailing down a quote for Monday’s planned press release — by 10 a.m. Monday, or “potentially sooner if we land an NYT embargoed piece.”
Press secretary Hand “confidentially” shared a draft of Healey’s executive order with the same three advocacy groups at 6:35 p.m. Friday as they developed their quotes for the press release. That was followed just three minutes later by some breaking news.
“Hey team — We have a decision in the FDA case,” Taylor St. Germain of Reproductive Equity Now wrote back to the group at 6:38 p.m. “Should we hop on a call in the next few hours to discuss plans from here?”
Fennimore wrote back from Healey’s office at 7:09 p.m. saying the “current plan” was to “stay the course.”
“Our legal team reviewing both TX and WA. Goal is to get statements tonight and keep the presser for Monday. Our executive order is ready if we need to do this sooner,” she wrote.
The administration blasted out a media advisory Friday night to alert the media about the planned press conference.
Emails with advocacy groups picked up again on Easter Sunday, when Hand, responding to a question from the ACLU, said that “my understanding is that the only change to the EO has been updating the language to reflect that the ruling already happened.”
Viator connected with the Mass. Medical Society that Sunday, sharing a draft of the executive order “with the caveat that things are moving quickly so there may be tweaks,” and opening the door to MMS providing “feedback” and connecting with the Department of Public Health on developing guidance to implement the order.
So that’s how a press conference was planned over the span of a few days.
But how did the administration arrange a one-year supply of an under-threat pill that it wanted to keep flowing to Bay Staters? What sort of coordination took place with UMass?
Responding to an inquiry from the News Service, Hand wrote that “some emails between the Governor’s legal office and UMass were exempted under the deliberative process and privacy exemptions, and the attorney-client privilege.”