Defending access to medical abortion in South Post-Roe

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Two weeks after the United States Supreme Court ended constitutional abortion rights, the Biden administration introduced a plan to protect access to abortion. But reproductive rights advocates say she could do much more to defend medical abortion, the most common form of abortion treatment.

On July 8, the White House issued an executive order protecting access to reproductive health care. Among other things, the order directed the Health Department to take additional measures to protect and expand access to abortion drugs. Four days later, the Justice Department set up a “Reproductive Rights Task Force” whose responsibilities include overseeing legislation aimed at banning mifepristone, which is used with misoprostol for medical abortions. Mifepristone blocks pregnancy hormones, while misoprostol causes uterine spasms that mimic miscarriage. HHS also issued a directive to pharmacies last week stating that refusing to fill prescriptions for mifepristone and misoprostol may constitute a civil rights violation.

“The Department is committed to improving maternal health — including for those who experience miscarriages — and vigorously enforcing our civil rights laws is one way to do that,” it said.

In 2020, 54% of abortions performed in the United States were medical abortions, according to the Guttmacher Institute, a reproductive health advocacy group. The Food and Drug Administration approved mifepristone for up to 10 weeks of pregnancy in 2000, and last December it permanently allowed the pills to be shipped by mail — a policy questioned in some states.

Medical abortion can greatly improve access to abortion treatment — particularly in states where a doctor can use telemedicine appointments to prescribe medications that can then be taken at home. However, Guttmacher reports that 19 states require a patient to be in the physical presence of a doctor to receive a medical abortion, and 10 of those are in the South: Alabama, Arkansas, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas and West Virginia.

Anti-abortion legislators in southern states want to further restrict medical abortions. Earlier this year, for example, the Republican-controlled Kentucky House legislature passed Bill 3, which bans receiving abortion drugs through the mail, though federal courts have blocked the law for now. And in June, Louisiana Gov. John Bel Edwards, an anti-abortion advocate, signed into law a law banning the mailing of abortion pills starting August 1 and banning doctors who perform medical abortions from being imprisoned for up to five years and fined up to sentenced to up to $50,000 for five years.

US Attorney General Merrick B. Garland articulated his department’s stance on medical abortion on June 24, the day the Supreme Court delivered its verdict in the Dobbs v. Jackson Women’s Health Organization Mississippi case overturning abortion rights: “States may not ban mifepristone if they disagree with the FDA’s expert judgment on its safety and efficacy,” he said.

But experts told Facing South the federal government could do more to protect access to medical abortion. These include suing states that restrict abortion pills, invoking pre-emption laws and repealing regulations on mifepristone, which has been shown to be safe and effective for abortion. For example, the FDA still regulates mifepristone heavily as part of its risk assessment and mitigation strategy, meaning the pill can only be administered by certified prescribers.

Access to medical abortion is even more important now that eight states have effectively banned most abortions, including four in the South: Alabama, Arkansas, Mississippi and Texas. For example, a May 2021 study by researchers from the University of Texas at Austin and other institutions found that the highest rate of requests for medication for self-administered abortions at Aid Access, an international nonprofit provider, came from Louisiana, followed by Mississippi. Wyoming and Alabama. And another study released in February found a 1,180% increase in daily Aid Access requests in the first week after Texas passed its six-week abortion ban.

“We are in a moment where we need to explore all possible options,” said Farah Diaz-Tello, senior counsel and legal director at If/When/How, a reproductive rights organization.

A public health emergency?

A legal battle over medical abortion has been brewing for two years, and it’s a lawsuit brought not by the federal government but by an abortion pill maker.

In October 2020, GenBioPro, the maker of generic mifepristone, sued Mississippi Public Health Official Dr. Thomas Dobbs, on the government’s restrictions on medical abortions. The lawsuit, filed in federal court in Mississippi, challenges the US Constitution’s primacy clause, which states that federal law supersedes state law. Mississippi filed a motion to dismiss the lawsuit, which is pending. GenBioPro’s attorneys argued that Mississippi’s 2013 Women’s Health Defense Act, which essentially banned telemedicine abortions, conflicted with the FDA’s policy on mifepristone.

“Our case is based solely on the fact that when the FDA approves a drug, any drug, there is no exception for drugs that treat abortion,” said GenBioPro attorney Kenneth J. Parsigian. “States cannot interfere with this balance because it undermines the purpose of FDA regulation.”

Parsigian said GenBioPro plans to file lawsuits in other jurisdictions restricting medical abortion using tactics similar to those used in the state of Mississippi. But he and other advocates of medical abortion wonder why the federal government itself hasn’t sued over state laws designed to stymie its powers.

“I don’t know what they’re looking at,” Parsigian told Facing South. “The problem exists now.”

Three days before the US Supreme Court announced its Dobbs decision, the American College of Obstetricians and Gynecologists sent a letter to FDA Commissioner Dr. Robert Califf urging him to invoke pre-emption laws and scrap the agency’s risk assessment and mitigation strategy for mifepristone, adding, “unnecessary and unrestricted burdens on physicians, patients and pharmacies.”

Law professors David S. Cohen, Greer Donley, and Rachel Rebouché are co-authors of a forthcoming Columbia Law Review article entitled “The New Abortion Battleground,” which will explore the post-roe legal landscape and lays out steps the federal government can take to protect abortion providers and patients. It reiterates calls for the federal government to repeal regulations on mifepristone and urges the FDA to issue a strong statement declaring that it has final authority to regulate mifepristone.

The paper also notes that by declaring a public health emergency under the Public Preparedness and Emergency Preparedness Act, the Biden administration “could allow the prescription and dispensing of abortion drugs out of state for those in states with abortion bans.”

“The question is whether this situation could be considered and classified as an epidemic,” Rebouché told Facing South.

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