Washington — While the Supreme Court considers whether to scrap its nearly five-decade-old decision in Roe v. Wade, the war over abortion rights is moving into a new chapter, with both sides of the issue girding for states to shift their focus to medication that induces abortion in early pregnancy.
The upcoming decision from the high court, coupled with an easing of federal rules governing how abortion pills are dispensed announced in December, has brought new urgency to efforts in Republican-led states to place new limits on medication abortion. And that push took on even more importance after a draft majority opinion from the Supreme Court was published by Politico that indicated the court had voted to overturn Roe.
The court confirmed the authenticity of the draft opinion written by Justice Samuel Alito and circulated in February among the justices, but stressed it did not represent a decision by the court or the final position of its members. Still, disclosure of the document sparked a firestorm of controversy and placed renewed attention on medication abortion, with demand for the pills likely to rise if Roe is reversed.
“Medication abortion is one more lens through which we see that we are witnessing a tale of two countries,” Jessica Arons, senior advocacy and policy counsel for reproductive freedom at the American Civil Liberties Union, told CBS News in an earlier interview. “Half the states are protecting access to abortion and half are trying every single way they can to eliminate access to abortion care.”
The Food and Drug Administration (FDA) approved the drug mifepristone — taken together with a second medicine — for use in terminating a pregnancy through 10 weeks gestation in 2000. In the two decades since, use of the two-drug regimen has grown, with more than one-third of abortions up to eight weeks being medication abortions, according to the Centers for Disease Control and Prevention.
In 2011, the FDA imposed restrictions on the use of mifepristone, requiring it to be prescribed and dispensed to patients in person by a certified prescriber. The main drug in the protocol also cannot be dispensed by retail pharmacies, and pregnant women can only obtain the pill from clinicians approved by the manufacturer.
But the COVID-19 pandemic led the FDA in April 2021 to relax its in-person dispensing requirements during the public health emergency, allowing providers to use telemedicine to prescribe mifepristone and patients to obtain the medication by mail. The agency conducted a review of the restrictions, prompted by a lawsuit filed by the ACLU in 2017, and made the changes permanent on Thursday.
Before the FDA decided to lift the federal requirements regarding medication abortion, pro-abortion rights advocates said the effects for patients would largely depend on where they live, exacerbating disparities in abortion access.
“If and when the FDA removes its medically unnecessary restrictions on medication abortion, this will increase access for folks in states without state-level restrictions,” Arons said. “But in states where abortion is quite restricted, they’ve already locked down those options, eliminated those options. Folks in those states won’t be able to feel the benefit of that decision.”
Sue Liebel, state policy director at Susan B. Anthony List, an anti-abortion rights organization, said a move by the FDA to scrap the rules on medication abortions would push more states to enshrine the requirements into state law, as its decision last year not to enforce the in-person dispensation requirement was a catalyst for action at the state-level.
“That wasn’t the first red flag, but the biggest red flag that the FDA was poised to either reduce or completely remove the health and safety regulations, and that would make it the Wild Wild West of the drugs,” she said. “States are keen about what is going on.”
In 33 states, only licensed physicians are permitted to dispense abortion pills, while two states — Indiana and Texas — prohibit the use of medication abortion beginning at a set stage in a pregnancy, according to the Kaiser Family Foundation. Nineteen states, meanwhile, require a clinician providing a medication abortion to be physically present when the drug is administered or restrict the use of telemedicine. In 2021 alone, at least six of those states enacted laws prohibiting the mailing of drugs for medication abortion, according to the Guttmacher Institute, a pro-abortion rights research organization. Some of the laws, though, have been blocked by the courts.
“I think this is the new frontier,” Liebel said. “The states were a little slow on the uptake to anticipate the explosion of the use of abortion-inducing drugs. I think they’re playing a little bit of catch-up, but it didn’t start this year.”
With state legislatures poised to reconvene in January, Liebel predicted lawmakers in at least seven states will introduce measures to place limits on medication abortion.
These state-level efforts targeting medication abortion are set against the backdrop of a forthcoming decision from the Supreme Court in a dispute over a Mississippi law prohibiting abortions after 15 weeks of pregnancy. State officials asked the high court to overturn its 1973 decision in Roe, which established a woman’s right to an abortion before fetal viability. A majority of the justices appeared willing to uphold Mississippi’s law, which would pave the way for states to place new limits on the procedure. It’s unclear, though, whether the Supreme Court will go so far as to scrap its past abortion decisions.
In addition to the decision in the Mississippi case, the Supreme Court in December said abortion clinics in Texas can proceed with their challenge to a state law banning abortions after embryonic cardiac activity is detected, usually at about six weeks and often before a woman is aware that she is pregnant.
The Supreme Court’s decision was a narrow victory for the providers, with the justices limiting who they can sue and leaving the law in place while legal proceedings continue.
After the Texas measure, known as S.B. 8, took effect September 1, Elisa Wells, co-founder of Plan C, which provides information about access to abortion pills online, said there was a significant uptick in visits to her site, with one-quarter of its traffic coming from Texas.
Earlier this month, a second Texas law took effect that limits access to medication abortion by prohibiting use of the drugs after seven weeks of pregnancy. The measure also imposes criminal penalties on those who send the medication by mail.
“Here we are in the United States of America with a situation in which access to a FDA-approved medication is not equal in all the states,” Wells said. “That’s absurd.”
