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The fight over abortion pills has been escalating since before Roe v. Wade was overturned, but the pills' availability is in danger now more than ever.

Why it matters: With pills now accounting for the majority of abortions, opponents of the procedure are focusing on legislatures and courts to erect barriers. But that's triggering thorny legal questions, foremost of which is playing out in a federal court in Texas over whether the FDA has the final say on whether the pills are safe.

Abortion pills have been available in the U.S. for decades, and while the FDA says that medical evidence shows they are safe and effective, the drugs have been subject of fights over manufacturing, distribution, insurance coverage and who can provide them.

Confusion around the drugs continues in the U.S., where nearly half of adults say they are not sure whether medication abortion is legal in the state they live in, according to a recent KFF survey.

Over half of abortions in the U.S. occur via abortion pills, according to the Guttmacher Institute, a research organization that supports abortion rights. 

Abortion pills are often accessed online and mailed to patients, effectively working to circumvent state bans and restrictions that took effect after the Supreme Court overturned Roe v. Wade.

Medication abortion normally consists of two pills: mifepristone and misoprostol.    

Mifepristone is approved by the FDA to be used alongside misoprostol to end a pregnancy during the first 10 weeks — this includes elective abortions and miscarriages. 

A patient first takes 200 milligrams of mifepristone orally to stop the pregnancy from growing. This is followed 1-2 days later by 800 milligrams of misoprostol taken buccally — placed between the gums and cheek — which causes cramping and bleeding to empty the uterus.

The mifepristone-misoprostol combination regimen has been found to be at least 95% effective at terminating a pregnancy.

Zoom in: Misoprostol — which is approved for the prevention and treatment of gastric ulcers — can also be taken on its own for medication abortion, a method that is supported by the World Health Organization.

While misoprostol is not specifically FDA-approved for abortions, it can still be used to terminate a pregnancy. A health provider has the authority to prescribe the drug for off-label use if they consider it to be medically appropriate.

The misoprostol-only method is slightly less effective than the combination regimen. A February study with over 1,000 U.S. participants found that using misoprostol alone was 88% effective at ending a pregnancy. 

How are the pills used in miscarriage care?

The mifepristone-misoprostol method is considered the most effective medication regimen for managing early miscarriages, per Planned Parenthood. 

The drugs are used to make sure that pregnancy tissue passes after there has been a miscarriage, which makes the patient experience bleeding.

While pregnancy tissue can pass naturally and take a few weeks to do so, the experience can be incredibly distressing for the pregnant person, so they can take mifepristone and misoprostol to ease and speed up that process.

Details: A 2018 study from the New England Journal of Medicine found that the combination regimen was more effective than the use of misoprostol alone, and reduced the likelihood for additional treatments — which might include additional doses of misoprostol or potentially surgical intervention.

Abortion pills are considered safe and effective by major medical groups, such as the American Medical Association and the American College of Obstetricians and Gynecologists.

"Medication abortion using mifepristone and misoprostol has always been part of my practice. It's incredibly safe and effective for people to end their pregnancies or to treat their pregnancy losses or miscarriages," said Jamila Perritt, president and CEO of Physicians for Reproductive Health and an OB-GYN in Washington, D.C., during a roundtable with abortion providers.

Zoom out: Mifepristone is approved for abortion use in over 80 countries.

Why is mifepristone at risk of becoming unavailable?

A coalition of anti-abortion groups in November filed a lawsuit challenging the FDA's overall approval of mifepristone. The plaintiffs argue that that the FDA did not properly authorize mifepristone for terminating pregnancies.

The lawsuit was filed in the Northern District of Texas, where a Trump-appointed federal judge who has openly opposed Roe v. Wade is considering whether to temporarily block the FDA's approval of mifepristone, which would make the medication unavailable even in states that protect access to abortion.

Meanwhile: Two lawsuits in North Carolina and West Virginia are challenging restrictions in those states to settle the question on whether states can regulate or limit drugs that have been approved by the FDA.

Another lawsuit brought by Democratic attorneys general challenges the FDA's dispensing restrictions on mifepristone, arguing that they are "unnecessary" because they drug is considered to be safe and effective.

The FDA first approved mifepristone for pregnancy termination in 2000 under the agency's Risk Evaluation and Mitigation Strategy, a program that adds dispensing restrictions to certain drugs, including requiring specific certifications for those who prescribe them. 

Since its initial approval, the FDA has loosened mifepristone's REMS restrictions over the years, including getting rid of the original in-person requirement and allowing the drug to be accessible via telehealth, as well as letting pharmacists become dispensing-certified.

State of play: Patients can go on websites like Aid Access, Hey Jane and Choix to get the drugs online and have them mailed.

Yes, but: At least 17 states have laws in place that prohibit the use of telemedicine to access abortion medication, and instead require patients to take the treatments in a health care facility.

So-called trigger laws took effect that can make it impossible for people to access abortion pills. Since then, pill providers have experienced soaring demand online.

Most of these bans and restrictions are specific to the pill provider, not the patient. As a result, a user could travel across state lines to pick up the pills. 

Some telemedicine providers — such as Aid Access — are located overseas and mail the pills to all 50 states. However, people who live in red states face a higher risk of prosecution.

What's happening: The FDA recently made a regulatory change to allow retail pharmacies to offer abortion pills, an update that looks to expand access as more red states move to ban or restrict access to abortion.

Walgreens and CVS, two of the largest U.S. pharmacy chains, have said that they plan to have some of their pharmacies certified to dispense mifepristone, as long as it does not conflict with state and federal law. 

Editor's note: This story has been updated with information about the lawsuit from Democratic attorneys general. 

How abortion pills work and why they're in the spotlight

Demand for abortion pills has soared since the Supreme Court decided to overturn Roe v. Wade.

A combination pack of mifepristone (left) and misoprostol tablets, two medicines used together as the abortion pill. Photo: Elisa Wells/ Plan C/AFP via Getty Images

Abortion

Axios Explains: Abortion

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Politics & Policy

Three women are facing a lawsuit for wrongful death after a man accused them of helping his ex-wife obtain medication for an abortion. 

Driving the news: The lawsuit is the first of its kind under Texas' near-total abortion ban, which could make it a crime for anyone to help a pregnant person access the procedure.

Marcus Silva has alleged that his now ex-wife realized she was pregnant in July 2022, a month after Roe v. Wade was overturned and a month before Texas' trigger ban went into effect.

Two of his ex-wife's friends allegedly texted her with information about Aid Access, an international group that provides abortion pills via mail, before appearing to decipher a way to obtain the medication in Houston, according to the complaint.

The third woman delivered the medication, the lawsuit alleges. 

Details: Court records show that Silva's wife filed for divorce in May 2022; it was finalized in February, the Texas Tribune reports.

In text messages attached to the complaint, she expressed concern that Siva would "use it against me" and try to make her stay with him. "And after the fact, I know he will try to act like he has some right to the decision."

Her friends appeared to agree, with one texting: "I just worry about your emotional state and he’ll be able to snake his way into your head." They also encouraged her to delete their text conversation.

The lawsuit argues that obtaining a self-managed abortion is a crime of murder and that Silva as such has ground to sue the three women, who have not been criminally charged, under the wrongful death statute. 

Silva's wife is not named in the suit; Texas' laws exempt the pregnant person from prosecution.

Between the lines: The lawsuit says the abortion took place in July. However, at the time, the state’s trigger ban had not yet taken effect — the law became enforceable in late August.

Our thought bubble: The lawsuit brings attention to the idea that anyone other than a health provider could be punished under Texas’ trigger ban, which does not specifically state that penalties apply only to "licensed physicians."

Abortion bans have so far specifically focused on penalizing doctors, and this case could potentially change that, even as anti-abortion groups say the focus for prosecution should be on providers.

Of note: While Texas’ trigger ban states that providing an abortion could be considered a first-degree felony — punishable by life imprisonment or a term between five to 99 years — it makes no mention that abortion should be considered murder.

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3 Texas women sued for allegedly helping friend access abortion pills

Marcus Silva has sued the three women for wrongful death for allegedly assisting his now ex-wife.

Protesters march during an abortion rights rally on June 25, 2022 in Austin, Texas. Photo: Sergio Flores via Getty Images

New York governor, AG urge biggest pharmacy chains to commit to abortion pills

"New Yorkers urgently need their health care providers to clearly stand up for access to reproductive health care."

A CVS location in New York is pictured on Feb. 9. Photo: Stephanie Keith/Bloomberg via Getty Images

New York

A lawsuit brought by abortion patients in Texas is focusing attention on how some strict state abortion bans could imperil lives by leaving it to providers to prove if a person qualifies for an emergency exception. 

The big picture: The Center for Reproductive Rights filed a complaint on behalf of five women challenging Texas' trigger ban and six-week bans, and is asking a state court to declare that physicians have the authority to provide abortion care when they consider it medically necessary.

The lawsuit states that each of the five women were denied "necessary and potentially life-saving obstetrical care" despite the risks their pregnancies presented on their lives or their fetuses' lives.

All five said they had wanted to keep their pregnancies, but the complications made that impossible.

The lawsuit is not seeking to overturn Texas' abortion bans, but instead get clarification on when a medically necessary abortion can be provided.

Of note: It's believed to be first legal action brought by individuals who have been denied abortions since the Supreme Court overturned Roe v. Wade.

State of play: Under Texas' trigger ban, a licensed physician can perform an abortion only if the pregnant person's life is at risk or if the pregnancy "poses a serious risk of substantial impairment of a major bodily function." The provider must also attempt to save the fetus.

A provider who violates this law could be charged with a first-degree felony, which in Texas are subject to life imprisonment or a term between five to 99 years.

The state's six-week ban has exceptions for a "medical emergency."

Yes, but: Texas' bans do not use explicit medical terminology, "which is why physicians have been left wondering what it is they're supposed to do in these emergency situations," Molly Duane, a senior staff attorney for the Center for Reproductive Rights, said during a press conference on Tuesday.

Nancy Northup, the center's CEO, said that the group expects similar cases to come up across the country in states with bans whose medical exceptions are considered vague.

Zoom out: A report published on the New England Journal of Medicine before Roe was struck down predicted that health providers would struggle to interpret what constitutes a necessary abortion under some state bans, since there's no often no clear explanation as to what "the risk of death [has] to be, and how imminent must it be."

So far, 12 states ban abortion.  All state an abortion can be conducted to save a patient's life.

What they're saying: "We've known for a long time that exceptions are not sufficient to protect the life and health of those who face pregnancy complications and other traumas," said Andrea Miller, president of the National Institute for Reproductive Health, which advocates for access to abortion care.

"The fact is that providers face such extreme penalties and punishment if they aren't able to make a sufficient case that it creates a devastating chilling effect," Miller added.

The other side: Texas' laws and bans in other states allow doctors to intervene when faced with "an ectopic pregnancy, miscarriage, or a life-threatening complication," said Ingrid Skop, an OB-GYN in Texas and director of medical affairs for the Charlotte Lozier Institute, an anti-abortion research organization.

"Yet no matter how many times we correct the record, ... misinformation" spread by abortion rights activists confuse physicians and the general public and put "women's lives at risk," Skop added.

What also happened: Vice President Kamala Harris said on Tuesday the suit illustrates how taking away women's rights to make reproductive care decisions has "potentially life-threatening consequences." 

"Now, multiple women impacted by these abortion bans announced a joint lawsuit against the state of Texas, showing those fears have turned into reality," Harris added.

lawsuit brought by abortion patients in Texas

could be charged with a first-degree felony

Texas abortion lawsuit puts medical exceptions under spotlight

Abortion rights advocates say that ban penalties are so severe, doctors are afraid of providing medically necessary abortions.

Illustration of two gloved doctor's hands holding a speculum, with handcuffs on their wrists

While Republicans have largely said that abortion is a state issue following the fall of Roe v. Wade, conservative-led states are now on record backing a nationwide injunction on the use of a key drug used in medication abortions. 

Driving the news: 22 Republican state attorneys general filed a brief Monday in a case brought by an anti-abortion group, asking a U.S. District Court in Amarillo, Texas, to block the Food and Drug Administration's 2000 approval of mifepristone — a move that abortion advocates say would effectively result in a national ban.

Since abortion pills can be mailed and accessed online, including through overseas companies like Aid Access, they are considered a way to circumvent state restrictions on the procedure. The pills are deemed safe and effective by major medical groups.

Details: The Republican brief says that the FDA "has acted to establish a nationwide regime of on-demand abortion ... in defiance of federal and state laws protecting life, health, and safety."

The FDA's approval of mifepristone, which is used alongside misoprostol to terminate pregnancies, "undercut" states' efforts to ban abortion and "thus [harms] the public interest," the brief states.

The intrigue: While the AGs' focus on arguing that mifepristone's approval harms the citizens of the states that they represent, an injunction would cover every state, including those that protect abortion access.

It's the most sweeping policy Republicans have taken on abortion since Roe was overturned, after previously distancing themselves from the issue and deferring to states. 

The other side: 22 Democratic attorneys generals last week filed a brief opposing an injunction, arguing that it "would be nothing short of catastrophic, causing shock waves nationwide."

They argue that under the Dobbs opinion that struck down Roe, they have the authority to "promote access to abortion" in their states since the issue now falls to "elected representatives."

"Annulling the FDA's approval of mifepristone would, in effect, eviscerate [states'] sovereign decisions to protect the right to choose to terminate a pregnancy," per the Democratic brief.

What we're watching: The Texas judge's decision on whether to temporarily block the FDA's authorization of mifepristone is expected to be released later this month. 

If the authorization is reversed, it would be the first time a court orders the FDA to withdraw approval of a drug and potentially have wide implications for U.S. regulatory agencies, legal experts say.

GOP attorneys general call for scrapping FDA approval of abortion pill

22 GOP attorneys general are supporting an end to medication abortion in the U.S.

Illustration of a healthcare cross, half red, half blue, with the colors fighting to take over the whole cross.

Share of Americans who say they are dissatisfied with U.S. abortion policy, by reasoning

People in America are more dissatisfied with the U.S.'s abortion policy than they have ever been in the 23 years, according to a new Gallup poll released Friday.

Driving the news: Democrats' dissatisfaction with laws have jumped after the fall of Roe last June and nationwide GOP-led efforts to enforce abortion restrictions. For over 20 years, Republicans were more likely than Democrats to express dissatisfaction, per Gallup. 

By the numbers: A record-high 69% of U.S. adults are dissatisfied with abortion laws, per the Gallup poll — compared to the 26% who are satisfied with abortion policies, which is on par with last year's 24%.

46% of respondents are dissatisfied and say they want the laws to be made less strict — a 16-percentage-point jump since January 2022.

15% are dissatisfied and favor stricter laws while 8% are also dissatisfied but want the laws to stay the same.

50% of women are dissatisfied with U.S. abortion laws and support less strict policies, an 18-point jump and the highest on Gallup's record. Dissatisfied Catholics and Protestants are also increasingly backing less strict laws.

Worth noting: 74% of Democrats are dissatisfied and calling for less strict laws — a 31 percentage-point jump in one year. Independents who responded the same way saw a 13-point increase to 44%.

The percentage of Republicans who are dissatisfied and urging for a loosening of policies remained statistically unchanged at 17%.

The big picture: Women in states with abortion bans are nearly three times more likely to die during pregnancy, childbirth or soon after giving birth.

People have turned to abortion pills as a result, leading to a surge in demand after the Supreme Court overturned Roe v. Wade.

Abortion rights are expected to play a major role in the 2024 election. 

Dissatisfaction with abortion policy highest since 2001

Half of the women surveyed say they are dissatisfied with U.S. abortion laws and support less strict policies.

Policymaking

Data: Guttmacher Institute; Table: Alice Feng/Axios

About a quarter of U.S. states have banned or restricted abortion since Roe v. Wade was overturned. But elsewhere, lawmakers are moving to ensure that access to the procedure remains guaranteed, and to accommodate out-of-state providers and patients.

The big picture: There are currently at least 25 states and Washington, D.C., which have measures in place to protect abortion access.

Some are weighing steps to expand access and prepare for a likely influx of out-of-state patients seeking care.

In 2022, a total of 364 bills and executive orders were introduced to protect abortion access in 33 states and Washington, D.C., according to data from the Guttmacher Institute provided to Axios.

State of play: Voters in California, Vermont and Michigan in November adopted amendments to enshrine abortion protections into their respective state constitutions.

Michigan is the only one that previously lacked state laws in support of abortion access.

More states are expected to advance similar measures, because constitutional protections are considered the most ironclad and are "very hard to amend," Jessica Arons, senior policy counsel for the American Civil Liberties Union, told Axios.

"You can pass a bill that codifies abortion rights ... but if a future election changes the political makeup of the legislature and who's in the governor's office, then they could repeal the statute," Arons added.

Additionally, Arons explained that courts can "invalidate" a state law, but not a constitutional amendment because they are "bound" by that document.

Zoom in: Blue states started enacting protective laws even before the Supreme Court's Dobbs decision that overturned Roe. 

Several — such as Colorado, Connecticut, New Jersey, New York and Washington state — adopted new bills after Texas' six week ban took effect and after the Supreme Court leak came out.

What else is happening: Governors in California, Colorado, Hawaii, Maine, Massachusetts, Michigan, Minnesota, Nevada, North Carolina, New Mexico, Pennsylvania, Rhode Island and Washington have issued executive orders to add more protections to abortion providers and patients in their states.

Other types of laws: Other states — like Maryland, Washington and Delaware — have moved to loosen restrictions on who can provide and abortion and who can prescribe medication to end a pregnancy.

Four states — Colorado, Massachusetts, Montana and Maine — have laws that establish a "bubble zone" that limits protests near the doors of any clinic.

States are also considering bills that would require most insurers in a state to provide abortion coverage.

Between the lines: In states like New Mexico, Kansas, Montana, Alaska, Florida and Minnesota, the right to an abortion is protected by a state Supreme Court precedent, according to the Center for Reproductive Rights.

However, those rights could be challenged in court in states where there is an anti-abortion majority of lawmakers. 

Approximately six in 10 U.S. adults (61%) believe abortion should be legal in "all or most cases," according to a survey from the Pew Research Center.

What they're saying: "As most states return for their first legislative sessions since the Dobbs decision and the midterm elections, there's no doubt that abortion will be front of mind for lawmakers — just as it is for their constituents.," said Alexis McGill Johnson, president of Planned Parenthood Action Fund, in a written statement.

McGill Johnson said that while more abortion restrictions are expected to be introduced in states, Planned Parenthood also expects "renewed efforts to restore, protect, and expand reproductive freedom."

Below is a summary of the most recent laws protecting or expanding abortion access. 

Abortion protections that have been enacted

Minnesota: Gov. Tim Walz (D) signed into law a bill to guarantee the right to an abortion in the state, which is now considered to be a haven for abortion access in the upper midwest. 

Minnesota is the first state since the fall of Roe to enact a protective law.

Michigan: Constituents voted in support of a constitutional amendment to create a right to "reproductive freedom," which includes the ability to get an abortion. 

The petition to add the amendment to the November ballot got the most signatures of any ballot initiative in state history.

California: Voters in the state adopted a constitutional amendment that creates a "fundamental right to choose to have an abortion."

Gov. Gavin Newsom (D) last year also signed into law a bill to protect abortion providers and patients from bans, lawsuits and penalties in other states, such as the restrictive laws in Texas and Oklahoma. The bill is in effect.

Vermont: Voters overwhelmingly backed adding a constitutional amendment that protects abortion access and creates an "individual’s right to personal reproductive autonomy," which includes the choice to get an abortion.

Massachusetts: Ex-Gov. Charlie Baker (R) signed into law a bill to expand protections to reproductive health care and gender-affirming care. 

The legislation also prohibits state agencies from assisting with other out-of-state investigations or legal proceedings on health care services that might be restricted in other states.

Abortion protections that have passed both chambers in the state legislature

New York: Lawmakers officially passed a bill to add an amendment conferring the right to get an abortion into the state's constitution. Voters will get to decide on the addition during the 2024 elections. 

Go deeper: Where abortion has been banned now that Roe v. Wade is overturned

Where abortion access is protected without Roe v. Wade

Over 360 provisions were introduced to protect abortion access in 2022.

Both sides in the abortion fight are trying to claim symbolic high ground on Sunday's 50th anniversary of Roe v. Wade while looking ahead to a new phase that will be largely fought in state capitals and the courts.

What’s happening: Anti-abortion groups are celebrating the culmination of their decades-long effort to overturn the federal right to the procedure while abortion rights advocates are pressing to maintain access in states where it remains legal.

Those activists also are trying to ensure that the energy around the issue that fueled Democrats' midterm engagement doesn't wane. 

"It's important for us to lend the message that the protests of last year were not a fluke, November was not a fluke ... and the fight for the last 50 years was not a fluke," said Rachel Carmona, executive director of Women's March, which is having its national march on Sunday in Madison, Wisconsin.

Carmona told Axios that the march is happening in a key swing state instead of Washington, D.C. — where previous national Women's Marches have taken place — because there's not much that a divided Congress can do, and "the fight is going back to the states."

What they're saying: Sunday is a day "to reflect on the faithfulness of the pro-life movement," said Marilyn Musgrave, vice president of government affairs at Susan B. Anthony Pro-Life America.

"I never thought I'd see Roe overturned in my lifetime, and here we are," Musgrave added.

Where things stand: In its Dobbs opinion overturning Roe v. Wade, the Supreme Court ruled that elected officials — both on the state and federal levels — have "the authority to regulate abortion." Some conservative-led states have quickly enacted restrictions while progressive legislatures and governors adopted protections guaranteeing access to the procedure. Another raft of bills is emerging as state legislatures gavel in their 2023 sessions.

But the focus increasingly is on the judicial system. At least 14 states have ongoing litigation in which providers, clinics and other groups are challenging state bans and restrictions, according to a new brief from the Kaiser Family Foundation. 

It will "most likely" be up to each state's highest court to decide on the constitutionality of bans and the legal availability of abortion care, per the KFF brief, which notes providers in many cases are arguing that the rights of their patients – not necessarily their own – are being infringed.

Roe's 50th anniversary: Where the abortion fight goes now

Anti-abortion activists are celebrating the fall of Roe, but their opponents are not giving up just yet.