Abortion pills are likely to become the next major front of the fight over reproductive health care in the wake of the Supreme Court’s decision overturning Roe v. Wade.
Republican-led states have been moving to limit or even completely ban access to the drugs, and advocates worry the Supreme Court’s decision will embolden even more states to crack down.
Immediately following the ruling, Attorney General Merrick Garland said the Justice Department will protect the right to an abortion, including medication abortion.
“We stand 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,” Garland said in a statement.
“In particular, the [Food and Drug Administration] FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Garland said.
President Biden on Friday 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 would be available to the “fullest extent possible,” without specifying what measures the department would be taking.
There are two pills needed for a medication abortion, which is approved by the Food and Drug Administration for the first 10 weeks of pregnancy.
Mifepristone, a drug that blocks hormones necessary for pregnancy, was approved in 2000. It is then followed by misoprostol, which causes contractions and helps empty the uterus.
Medication abortion has become an increasingly common method for ending pregnancies. According to the Guttmacher Institute, it accounted for 54 percent of all abortions in 2020.
The FDA temporarily lifted a requirement that mifepristone be dispensed in-person at a clinic or hospital because of 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 mail the pills to patients.
Likely in anticipation of the Supreme Court’s decision, state lawmakers introduced a flurry of restrictions on medication abortion this year. There are currently 19 states, mostly in the South and Midwest, that ban providers from prescribing abortion pills through telemedicine.
In 32 states, clinicians who administer medication abortion are required to be physicians.
Texas prohibits the use of medication abortion starting at seven weeks of pregnancy, while Indiana bans its use at 10 weeks.
This week, Louisiana’s governor signed into law a bill that outlawed out-of-state providers from mailing abortion pills, punishable by up to 10 years in prison and a $75,000 fine.
Only a few states have tried to ban the pills outright, and those moves are tied up in court.
Still, now that the Supreme Court has overturned Roe, there’s a concern more states will try to restrict the pills, and there’s no clear precedent on whether the Justice Department has the power to stop them.
States have the authority to regulate practice of medicine, but Garland is seemingly arguing that federal law — and a federal drug approval — takes precedence over state law.
Lawrence Gostin, a professor of global health law at Georgetown University, said Garland needs to take action against any state that sets up barriers or outright bans access to abortion drugs.
“The FDA is our premier public health regulatory agency. And it should set, and does set, a national uniform standard for safe and effective drugs … states don’t get to pick and choose which FDA approved drugs they will and won’t allow,” Gostin said.
But Gostin also said the Supreme Court doesn’t have a consistent track record ruling about FDA preemption of state law.
“It’s unclear whether a very conservative Supreme Court would allow FDA to preempt state bans, particularly since it’s already ruled that abortion isn’t protected under the Constitution,” Gostin said. “And so I think it could go either way.”
In one of the more recent examples of FDA preemption, Massachusetts in 2014 tried to ban the FDA-approved opioid Zohydro. The manufacturer sued, and a federal district court struck down the state’s restrictions.
But the state didn’t appeal the decision, so it never advanced in the courts, making its impact on future case law unclear.
