Abortion pills are likely to become the next major front in the fight for reproductive health care following the Supreme Court’s decision overturning Roe v. Wade.
Republican-led states have moved to limit or even ban access to drugs altogether, and advocates fear the Supreme Court’s ruling could encourage even more states to crack down.
Immediately after the ruling, Attorney General Merrick Garland said the Justice Department would protect the right to abortion, including medical abortion.
“We stand ready to work with other branches of the federal government that seek to use their legal powers to protect and preserve access to reproductive care,” Garland said in a statement.
“In particular, the [Food and Drug Administration] The FDA has approved the use of the drug mifepristone. States cannot ban mifepristone due to disagreement with the FDA’s expert judgment on its safety and efficacy,” Garland said.
On Friday, President Biden also pledged to protect access to abortion pills, though the White House is limited in what it can do.
In brief remarks, Biden said he was directing the Department of Health and Human Services to ensure that abortion pills are available “to the fullest extent possible,” without specifying what action the department would take.
There are two pills needed for a medical abortion, which is approved by the Food and Drug Administration for the first 10 weeks of pregnancy.
Mifepristone, a drug that blocks hormones needed for pregnancy, was approved in 2000. It was then followed by misoprostol, which causes contractions and helps empty the uterus.
Medical abortion has become an increasingly common method of terminating a pregnancy. According to the Guttmacher Institute, it accounted for 54% of all abortions in 2020.
The FDA temporarily lifted the requirement that mifepristone be dispensed in person at a clinic or hospital due to the COVID-19 pandemic, and the Biden administration made the change permanent in December, paving the way for doctors to prescribe the drug digitally and then by mail. pills to patients.
Likely in anticipation of the Supreme Court’s decision, state lawmakers this year introduced a series of restrictions on medical abortion. There are currently 19 states, mostly in the South and Midwest, that prohibit providers from prescribing abortion pills via telemedicine.
In 32 states, clinicians who administer medical abortion must be physicians.
Texas prohibits the use of medical abortion from seven weeks of pregnancy, while Indiana prohibits its use at 10 weeks.
This week, the governor of Louisiana signed into law a bill prohibiting out-of-state vendors from sending abortion pills, punishable by up to 10 years in prison and a $75,000 fine.
Only a few states have attempted to ban the pills outright, and those moves are stalled in court.
Yet now that the Supreme Court has struck down Roe, there are concerns that more states are trying to restrict the pills, and there is no clear precedent for whether the Justice Department has the power to stop them.
States have the power to regulate the practice of medicine, but Garland apparently argues that federal law — and a federal drug approval — trumps state law.
Lawrence Gostin, a professor of global health law at Georgetown University, said Garland must take action against any state that erects barriers or outright bans access to abortion drugs.
“The FDA is our primary public health regulatory agency. And it should establish, and establishes, a uniform national standard for safe and effective drugs…states cannot choose which FDA-approved drugs they will or will not authorize,” Gostin said.
But Gostin also said the Supreme Court lacked a consistent decision regarding the FDA’s preemption over state law.
“It’s unclear whether a very conservative Supreme Court would allow the FDA to pre-empt state bans, especially since it has already ruled that abortion is not constitutionally protected,” Gostin said. “And so I think it could go either way.”
In one of the most recent examples of FDA preemption, Massachusetts attempted in 2014 to ban the FDA-approved opioid Zohydro. The manufacturer sued and a federal district court overturned the state restrictions.
But the state did not appeal the decision, so it never advanced to the courts, making its impact on future case law uncertain.