In the wake of Roe v. Wade being overturned, a legal battle over access to abortion-inducing medication is brewing.
Medication abortion, which The New York Times says is already used in more than half of recent abortions in the U.S., is preferred by many because it’s cheaper, less invasive and offers more privacy than the surgical alternative, the publication reported Sunday.
The pills can be obtained through the mail and taken at home after a patient meets with a doctor in-person, over video or phone, or by filling out an online form, NYT said. Those consultations must take place in a state where abortion is permitted, and clinics can use the IP address of the computer or phone a patient uses to identify their location.
Medication abortion became legal in the U.S. in 2000 with the FDA approval of mifepristone, The Times noted. There are many tight restrictions on the drug, but access was expanded in 2016 when the FDA increased the timeframe within which the drug could be taken from seven weeks to 10 weeks into a pregnancy.
States angling to ban all forms of abortion may have a difficult time stamping out medication abortion, however, which would be far more complicated than simply shutting down a clinic. Legal experts told The Times that it’s trickier to police activities like sending or receiving pills through the mail or traveling to a state where they’re legal to have a consultation and pick up the medication.
Meanwhile, 19 states already have laws in place barring the use of telemedicine for abortion. As one example, Texas recently enacted a law that prohibits the distribution of abortion pills by mail, The Times pointed out.
Still, it remains unclear just how states that ban all or most abortions will try to enforce those laws when it comes to medication, NYT said.
The Biden administration has voiced unwavering support for medication abortion. “As I have said before, we will double down and use every lever we have to protect access to abortion care,” U.S. Department of Health and Human Services Secretary Xavier Becerra said in a statement shortly after the Supreme Court released its opinion.
In a separate statement, Attorney General Merrick Garland said the Justice Department stands ready “to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care.” He singled out mifepristone, noting that “[s]tates may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
Nevertheless, it’s also unclear what the Justice Department can do to protect abortion rights, The Times noted. The publication cited conflicting opinions of legal scholars who were split on whether FDA approval of a drug pre-empts states to restrict its use. Some of those experts argued that this has only applied in cases where states had concerns about a drug’s safety or efficacy, The Times said.
Legal experts have also suggested the Justice Department could strike back against medication abortion restrictions by challenging laws around the mailing of pills, since the mail falls under federal oversight.
In a statement Friday, meanwhile, the FDA said it hadn’t had a chance to review the Supreme Court’s opinion, but it emphasized that its independent regulatory decisions are “based on science and facts,” as quoted in NYT.
The counterargument posed by anti-abortion groups is that medication abortion is unsafe. James Studnicki, vice president of data analytics at Charlotte Lozier Institute, part of Susan B. Anthony Pro-Life America, said last week that “the safety of the abortion pills is greatly exaggerated,” calling the rise in medication abortion “a serious public health threat,” as quoted by The Times.
Meanwhile, a large body of evidence suggests those safety concerns are unfounded. NYT cited a research program that the FDA allowed to provide telemedicine consultations and send pills by mail. The program reported that 95% of the 1,157 abortions that took place between May 2016 and Sept. 2020 occurred without the need for any follow-up procedure. Patients recorded 70 emergency room or urgent care center visits, with 10 instances of serious complications, according to the study.
Elsewhere, some states where abortion is legal are preparing to fend off legal assaults from their conservative counterparts. Connecticut, for example, passed a bill that would stop abortion providers from being extradited to other states. The bill would also prevent Connecticut authorities from cooperating with abortion investigations from a patient’s home state and would permit Connecticut residents sued under another state’s abortion provision to countersue, NYT said.
Likewise, legislation in California would give financial aid to patients traveling from other states to obtain abortions and increase the number of abortion providers, The Times added.