Jun 24, 2022 - Health

Abortion pills become central issue after SCOTUS ruling

Illustration of a social media notification with a pill inside
Illustration: Annelise Capossela/Axios

The Supreme Court ruling overturning Roe v. Wade immediately pivots the fight over abortion access to state efforts to restrict medication abortions or so-called "abortion pills."

The big picture: The pills used to terminate a pregnancy — mifepristone and misoprostol — are FDA-approved for use in the first 10 weeks of pregnancy and are frequently prescribed online and mailed to patients.

  • State efforts to restrict their use will pose thorny questions about how to enforce bans and challenge the notion of patients' rights, experts say.
  • "During the last 50 years or more in the abortion culture wars, there has been a line drawn that punishments should be meted out against providers and not against women themselves," Lawrence Gostin, a law professor at Georgetown University told Axios. "I think we're about to cross that line."

State of play: Medication abortion accounted for 54% of all U.S. abortions in 2020, up from 39% in 2017, according to the Guttmacher Institute.

  • The FDA in December lifted long-standing restrictions, making the pills more widely available, via telemedicine appointments and online prescribing that enables delivery to someone's door.

Between the lines: Republican states looking to limit access to the pills could encounter practical challenges and legal problems doing so.

  • Experts say legal precedent holds that states don't have the authority to ban FDA-approved drugs, as was the case when Massachusetts in 2014 tried to impose an emergency ban of an opioid. A federal judge struck down the ban, saying a state couldn't take a drug off the market that the FDA had deemed safe.
  • Attorney General Merrick Garland weighed in after the Supreme Court ruling on Friday, saying, "States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy."
  • President Joe Biden said he was directing HHS to ensure such medications would be available to the “fullest extent possible,” the Hill reported.
  • But that won't stop states from trying.
  • Lawmakers in at least 20 states have proposed restrictions or bans on the pills, per Pew's Stateline.
  • They range from bans on dispensing the drugs to requirements that physicians tell patients that medication abortions can be reversed by administering doses of progesterone, a controversial option.
  • Indiana last year prohibited medication abortions after 10 weeks of pregnancy, and Texas banned medication abortion after seven weeks of pregnancy, according to Stateline.
  • That all could lead to legal fights over federal preemption.
  • "The reason we have an FDA is to set a uniform standard for what's safe and effective and approved by our top public health regulatory agency," Gostin said. "If states were to start to undermine that, it would be catastrophic. Nonetheless, that's what some states are doing and, with this conservative Supreme Court and indeed conservative judiciaries throughout, the outcome of that is by no means certain."

Reality check: The efforts to ban pills will dovetail with broader state efforts to restrict abortion access now that the Supreme Court struck the federal right to the procedure. And those state laws may ultimately need to be revisited as the wider health implications become clear.

  • Health experts have warned that health providers may be reluctant to intervene and help people manage miscarriages, which often use the same methods as abortions.
  • Fertility services such as in vitro fertilization could also be deemed illegal in some places, depending on how states define unborn human beings and whether that applies to embryos created through the IVF process.
  • Emergency contraception like Plan B and certain types of intrauterine devices could also be restricted under some state laws, Cathren Cohen, a scholar of law and policy at the UCLA Law Center told NBC News last month.

“Anything that would prevent a fertilized egg from turning into a pregnancy and being born into a baby could be considered a homicide,” she said, per NBC.

Go deeper