The culture and legal wars over abortion are shifting to a new battleground: the use of pills that end pregnancies.
Abortion-inducing medication, which has become the most commonly used method for ending pregnancy, is the latest front in the battle over the legality of the procedure. A looming Supreme Court decision in the case Dobbs v. Jackson Women’s Health Organization could rescind the federal guarantee of abortion rights and effectively erase access to the pills in at least a dozen states.
The medication regimen that terminates a pregnancy was first approved by the Food and Drug Administration in 2000 after the agency determined the pills were safe and effective for use in the first 10 weeks of pregnancy. The regimen comprises two separate medications to be taken about 24 hours apart. The second of the two, misoprostol, induces what is essentially a miscarriage to end the pregnancy. Though declared safe overall, the FDA put in place an extra layer of safety protocols known as the Risk Evaluation and Mitigation Strategy, or REMS, a program designated for drugs that carry the possibility of causing negative health outcomes.
A wave of anti-abortion legislation being introduced by state legislatures that would ban the procedure after a short window of time — or entirely, as is the case in Oklahoma — has sparked a battle over access to the less invasive method. This year, eight states have introduced all-out bans on the use of medication abortion, including Oklahoma, where a ban on abortion after fertilization signed into law last month covers medication abortions. South Dakota and Texas have passed bans on medication abortions after 11 weeks and seven weeks in March and last December, respectively.
“Mail-order abortion drugs are the abortion lobby’s reckless plan if Roe v. Wade is overturned and the people regain the right to protect unborn children and mothers in the law,” said Mallory Carroll, vice president of communications at SBA Pro-Life America. “We’re proud to have worked with our allies to advance these life-saving measures and hope more lawmakers, both state and federal, will take action.”
Many conservative states, rather than propose an all-out ban on medication abortions, have proposed restrictions on the practice of medicine around the pills. Nineteen states have introduced legislation, mostly in 2022, that would impose prescribing restrictions, such as a requirement that only physicians can prescribe the pills, that the pills be taken in the presence of a doctor, and a ban on mailing the pills. Two state legislatures, Tennessee’s and South Dakota’s, have been successful in passing such restrictions.
The practice of medication abortion proliferated during the COVID-19 pandemic, with the pills accounting for 54% of all abortions performed in 2020. During the pandemic, the FDA loosened regulations on the prescribing of abortion-causing medication. The agency permanently lifted a ban on healthcare providers prescribing the drugs through telehealth appointments and sending them to patients through the mail. The requirement that the pills be dispensed to patients in person was temporarily rescinded by the Biden administration last year before the agency made the change permanent.
The revised guidance in December, while good news for people worried that the Supreme Court will scale back or throw out Roe this month, will not change much for women in GOP-led states that have banned the mailing of the drug.
Anti-abortion groups who oppose access to mail-order abortion pills argue that women who experience rare but severe adverse effects, such as excessive bleeding, are more likely to die due to a lack of a physician overseeing the process. Roughly 1,900 severe health reactions to the pills were recorded from September 2000 to February 2019, 529 of which were life-threatening, according to a 2021 report conducted by anti-abortion obstetricians and experts at the Charlotte Lozier Institute, the research arm of the Susan B. Anthony List.
The future of accessibility to these pills is in a precarious state given the imminent decision from the high court. Thirteen states have so-called trigger laws in place that would ban all forms of the procedure outright upon repeal of Roe, forcing many women in those states seeking a medication abortion to travel to states where it is legal.
Several organizations, such as Abortion on Demand and Hey Jane, are fighting back against red state-led efforts to limit access to the pills by connecting pregnant women to prescribers via telemedicine appointments and by shipping the pills out from one of two mail-order pharmacies authorized by manufacturers to dispense them. Patients living in states where prescriptions via telemedicine are banned have to cross state lines to pick them up from an address where they are legal, even if that is a hotel or post office box.
Blue states, meanwhile, are positioning themselves to become sanctuaries for women seeking abortions from states that are restricting abortion, especially those such as Texas, which have implemented a civil enforcement mechanism that allows any citizen to sue someone who has aided and abetted an abortion.
In California, the Democratic-led legislature is considering a package of 13 bills introduced in March that aim to protect access to abortion and reduce the cost. One of the bills would protect patients and providers from civil legal action from such abortion-hostile states if they undergo the procedure or provide one. And in Connecticut, the legislature has similarly said the state will not cooperate with investigations launched by people in other states to prosecute people who secure abortions in Connecticut by not complying with subpoenas and declining to turn over health data.
The Biden administration is relatively powerless to protect access to the pills. White House press secretary Karine Jean-Pierre reaffirmed the administration’s dedication to protecting access to abortion earlier this month, saying that President Joe Biden is committed to “ensuring that women can make their own choices about their lives, bodies, and families.” But absent congressional action, his options are limited.
Allocating federal money to bolster access is illegal under the Hyde Amendment, which is language added to federal spending bills that prevents taxpayer dollars from being used to fund abortion, which Biden pledged to overturn during his campaign. Directing resources to organizations that aid women crossing state lines to obtain abortion pills, while not specifically covering the cost of the procedure, could also be a violation of the amendment.
