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Abortion’s New Battleground: Biden Clashes With States Explained

Jan. 23, 2023, 10:40 AM

Sunday marked the 50th anniversary of the Supreme Court’s decision in Roe v. Wade, which guaranteed a federal right to abortion until it was overturned by last year’s groundbreaking Dobbs ruling.

That opinion set off a new wave of legal disputes between states and the federal government that will test President Joe Biden’s ability to get around state laws without express permission from Congress.

The administration released a report last week outlining its strategy, actions, and guidance to providers and patients in the wake of Dobbs. Senior administration officials told reporters in a Jan. 18 briefing that Biden plans to continue fighting anti-abortion legislation in Congress and push for new law to restore the protections Roe once offered.

On Sunday, Vice President Kamala Harris delivered an address in Florida rebuffing state efforts to restrict abortion access, even as Republican officials plan to impose additional limits in the coming months. She said Biden was issuing a memorandum aimed at protecting access to the abortion pill mifepristone.

The president’s team is also “going to take a look at the tools that the president has in front of him” to potentially take other executive actions on abortion, White House Press Secretary Karine Jean-Pierre said in a press briefing Jan. 20. “We’re going to see what else we can do. But again, it’s going to take congressional action to truly deal with this issue.”

Here are some of the ongoing cases and challenges shaping that battle:

Abortion Pills

Multiple states have enacted provisions to ban the use or shipment of a pill that induces abortions, medication first approved by the Food and Drug Administration in 2000.

The drug, mifepristone, together with another medication called misoprostol, can be used to end a pregnancy within 70 days of a person’s last menstrual cycle, before the end of the first trimester.

The pharmaceutical manufacturer GenBioPro, which makes a generic version, had challenged Mississippi’s abortion restrictions, including a requirement that a licensed physician prescribe the pill in person. The company withdrew its complaint in August, but plans to refile in another state.

Other states have their own laws restricting the pill beyond what the FDA has deemed necessary to defend the drug’s safety. Alabama and Tennessee prohibit the use of telehealth to administer mifepristone, even though the FDA in December 2021 said it would permanently remove the requirement that a person must physically go to a health-care provider’s office to get the pill.

Another issue is the prescribing and shipping of abortion pills across state lines.

An assistant US attorney general in the Justice Department’s Office of Legal Counsel said in a Dec. 23 memo that federal law doesn’t prohibit the US Postal Service from mailing and delivering mifepristone or misoprostol.

But legal observers have warned that the patchwork of state abortion laws and threat of legal action could deter some providers from prescribing and shipping the pill to patients in states with abortion bans.

Alabama’s attorney general, for instance, said patients who use mifepristone and misoprostol to induce an abortion could face charges under the state’s chemical endangerment law. And the Florida Medicaid agency said in a Jan. 11 alert in response to an FDA plan for certifying pharmacies that providers must comply with Florida statutes prohibiting abortions performed by individuals other than licensed physicians in a hospital or doctor’s office.

In California, mail-order pharmacy Honeybee Health this month became the first one certified to dispense mifepristone to patients with valid prescriptions. But the company’s co-founder has said it’s only able to ship mifepristone to the 24 states that don’t have abortion bans or state laws prohibiting the pill’s prescription via telehealth.

Meanwhile, a coalition of anti-abortion organizations led by conservative legal group Alliance Defending Freedom is in court in Texas trying to reverse the FDA’s approval of mifepristone almost a quarter-century ago.

The FDA has said the case is without merit and based on “speculative allegations of harm.” But legal observers have said that ADF’s challenge before a President Donald Trump-appointed judge poses the greatest legal threat in years to access to abortion pills in America.

Access at VA Hospitals

A nurse at a Department of Veterans Affairs medical facility in Texas is suing the agency over its decision to provide some abortions, arguing that compelling her to participate violates her religious beliefs.

Pregnant veterans and some of their family members can get abortions at a VA health facility if carrying the pregnancy to term threatens the patient’s life or health, according to a rule the agency announced last fall. They would also be eligible if the pregnancy is the result of rape or incest.

Texas law is more restrictive; it bans abortions at all stages in pregnancy except in life-threatening medical emergencies, and doesn’t include exceptions for rape or incest.

Eighteen Republican attorneys general have signed an amicus brief supporting the argument of the nurse, Stephanie Carter.

The department estimates that 155,000 veterans who use VA health care are of childbearing age and live in states with abortion bans or significant restrictions.

Abortion in Emergencies

In another Texas case, the Biden administration is likely to challenge an August ruling that blocked the government from enforcing its position that a federal law on medical care in emergencies preempts state abortion laws that conflict with it.

The Centers for Medicare & Medicaid Services issued guidance in July defending that view on the Emergency Medical Treatment and Labor Act, or EMTALA. Health and Human Services Secretary Xavier Becerra also wrote in a letter to health-care providers at the time that a physician “must provide” treatment in line with EMTALA if it is the best course of action for a pregnant individual in a medical emergency.

The HHS plans to stand by its interpretation and ensure EMTALA protects access to abortions in emergency settings, senior administration officials told reporters in their Jan. 18 call.

Medical Education

Biden’s team this month also took steps to shore up front-line response and training of doctors. Administration representatives met with officials from multiple states to talk about how to train aspiring obstetricians and gynecologists to perform abortions.

The American College of Obstetricians and Gynecologists requires OB-GYN residency programs to train future providers on how to end a pregnancy with medication or a procedure known as induced abortion. Students with moral and religious objections can opt out of the training.

Future OB-GYNs in abortion-restrictive states won’t get enough exposure to abortion care to become proficient, pushing them to seek that training in another place. In Oregon, a residency program is training a student from another state.

To Learn More:

—From Bloomberg Law:
Biden’s Abortion Rule for Vets Skirts State Law, GOP States Say
GenBioPro Gives Up Abortion Pill Suit Against Mississippi (2)
Abortion Pill In-Person Dispensing Rule Permanently Nixed by FDA (2)
Abortion Pill Access Will Remain Post-Roe: FDA Rules Explained
Abortion Pill Access to Ease With First FDA-Certified Pharmacy
Abortion Pill Opponents Seize New Chance to Target FDA Approval

—From Bloomberg News:
White House Aims at Protecting Abortion Pill Access, Harris Says
No Paper Trail: How Companies Are Delivering Abortion-Related Benefits
Supreme Court Overturns Roe, Transforming Abortion-Rights Fight
Oklahoma Lawmakers Pass Nation’s Toughest Abortion-Ban Measure
Abortion’s Future Belongs to a Supreme Court Reshaped by Trump

To contact the reporter on this story: Celine Castronuovo in Washington at ccastronuovo@bloombergindustry.com and Courtney Rozen at crozen@bgov.com

To contact the editor responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com and John P. Martin at jmartin1@bloombergindustry.com