Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

State Restraints on Abortion Pill Access Tee Up New Legal Battle

March 31, 2022, 9:40 AM

State efforts to ban medications that terminate a pregnancy are likely to be the next big legal fight over abortion regardless of what the U.S. Supreme Court decides to do with Roe v. Wade.

Alabama, Mississippi, Kansas, and 16 other states now have laws requiring a clinician to be physically present when abortion-inducing drugs are administered, according to the Guttmacher Institute, a research group that supports abortion rights. These laws prohibit drugs like mifepristone from being prescribed through a telehealth appointment, and some prevent them from being sent by mail. In Texas, violators can be jailed and fined up to $10,000 under a law that took effect in December.

Legal scholars and abortion rights advocates say states expect the Supreme Court to wipe out abortion rights and are passing laws in anticipation to prevent people from finding alternative ways to end a pregnancy once state bans are lawful. Since Guttmacher estimates more than half of all abortions in the U.S. in 2020 were done with medication, laws like these make this cheaper alternative to an abortion procedure harder to access.

“These states are showing us they’re not satisfied with just banning abortion within their borders and regulating health-care providers within their borders,” said Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights. “They are also trying to reach out and regulate the provision of care outside their borders,” she said.

In Missouri, one proposal models a Texas law by allowing private citizens to file civil lawsuits against anyone who performs an abortion or helps a person get the procedure either in or out-of-state, and that includes help getting abortion medication.

Alternative to a Ban

The Supreme Court is expected to decide by the end of June whether to overturn the constitutional right to abortion created by Roe. The seminal decision was directly challenged in a fight over a Mississippi law that bans abortion after 15 weeks of pregnancy.

It seemed like the court was headed that way during oral arguments in December, though there is another option. The court could instead say there’s still a right to abortion but allow states to put more restrictive limits on it.

That would gut the standard the court set in Planned Parenthood v. Casey. In that case, the court said states can limit abortion as long as those limits don’t unduly burden a person from accessing the procedure.

“It’s possible the court could not completely overrule Casey and still make it mean so much less,” said Mary Ziegler, a professor at Florida State University College of Law, who specializes in legal history of reproduction and the Constitution.

Ziegler expects future medication abortion laws, especially those that might regulate travel out of state, to be challenged even if Roe is overturned because they could create other constitutional issues if they interfere with interstate commerce or the right to travel.

Changed FDA Regulations

Other legal scholars have argued state restrictions on abortion medication may be preempted by federal law since the Food and Drug Administration changed its regulations for mifepristone in December and eliminated a provision that required the drug to be dispensed at a health-care facility.

“For states now to say you have to pick up this drug in person is essentially contradicting the safety and efficacy findings of the FDA,” said Rachel Rebouché, interim dean of Temple University Beasley School of Law, who is a leading scholar in reproductive health law.

Even further, she asserted that states “can’t ban medication abortion because the FDA permits its use, permits its sale as the only approved means to terminate a pregnancy via a drug.”

Anti-abortion advocates argue states are simply trying put back the safeguards that the FDA eliminated.

“We know the new frontier for the abortion industry is the mail-order, do-it-yourself abortions. However, the reason the FDA in the year 2000 approved the pills with this caveat that you had to be seen in person was to rule out contraindications,” said Sue Swayze Liebel, state director at the Susan B. Anthony List, a group whose mission is to end abortion.

Contraindications are symptoms or conditions that would make taking the medications inadvisable, like an ectopic pregnancy, which occurs outside the uterus and can be life-threatening, she said.

“While this issue obviously is very politicized, very polarizing, it doesn’t take long to look at the data and see why FDA did that for 21 years,” Swayze Liebel said.

The FDA, however, said it conducted a full review of the risk evaluation and mitigation strategy for mifepristone and determined that reducing the burden on patient access and ensuring the benefits of the product outweighed the risks. The agency has said the drug, which is used together with another medication called misoprostol, is safe and effective up to 10 weeks of pregnancy.

Enforcement Tricky

State bans on abortion medication being prescribed through a telehealth visit or sent by mail can be difficult to enforce, and some states that support abortion rights are trying to make it even harder.

California is considering a proposal (A.B. 1666) to protect anyone who receives, performs, or aids and abets an abortion from being sued for violating another state’s abortion restrictions. And Connecticut is considering a bill (H.B. 5414) that would stop state officials from helping other states enforce their restrictions.

While the state laws on abortion medications take aim at physicians and others who help someone get an abortion, legal scholars worry states will try to prosecute the pregnant person next.

States already seem to be acting more aggressively, Seema Mohapatra, a health law and bioethics professor at SMU Dedman School of Law, said.

“We’re going to see criminalization of abortion in some states, and that’s going to include the pregnant person themselves,” she said.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Brent Bierman at bbierman@bloomberglaw.com