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Supreme Court’s Roe Ruling Tees Up Fight Over Abortion Pills

June 27, 2022, 9:25 AM

The US Supreme Court decision overturning federal abortion rights sets the stage for conservative states to drastically limit access to a pill used to end early pregnancies.

The ruling is likely to make abortion illegal in half the country and puts the authority to regulate the procedure back in the hands of state governments. Legal scholars say the move could spur states to go after mifepristone, a medication that’s used for the majority of US abortions.

“Abortion pills are the new battleground. In many states they will be illegal,” said Lawrence Gostin, director of Georgetown University’s O’Neill Institute for National and Global Health Law. “There will be a race to the bottom for who can be the most restrictive state.”

The Biden administration is already shoring up efforts to counter the Supreme Court ruling’s impact on abortion drugs.

Health and Human Services Secretary Xavier Becerra has said he’s directing the agency to “do any and everything we can” to ensure “the right to safe and legal abortion” through medication. Attorney General Merrick Garland also joined the fray, asserting that states can’t ban mifepristone based on disagreement with the Food and Drug Administration’s “expert judgment about its safety and efficacy.”

That, however, doesn’t mean that states won’t try to find other means to block access to the drugs.

“‘If what we think will happen actually happens, the 26 states that ban abortion will also ban medication abortion,” said Rachel Rebouché, a Temple University professor specializing in reproductive health law. “To get a medication abortion legally, you will need to be in a state that permits telehealth for abortion or be in a state where a provider can hand you the abortion pill.”

Unsettled Law

Friday’s decision to uphold a Mississippi ban on abortions after 15 weeks of pregnancy doesn’t ban abortion pills outright. But it does set the stage for a contentious battle between state rights and FDA regulatory authority.

“This is an unsettled area of law—what the preemption power of the FDA is as it comes to drug regulations that contradicts state policy—because these bans won’t target medication, they will just include medication,” Rebouché said.

Whether a drug goes on the market is a decision that ultimately rests with the FDA.

In the case of mifepristone, that decision was made over 20 years ago. Since then, medication has come to account for more than half of US abortions, according to research from the Guttmacher Institute.

State law, however, controls “the practice of medicine,” meaning states could prohibit prescribers from offering the drug, said Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University.

That means that physicians or pharmacists providing abortion drugs in a state where abortion is illegal could face penalties.

“If states are going to try and do this, they may try to be smart. They’re not going to ban the drug. That might run afoul of the FDA,” Parmet said. “They’re going to ban the prescription or use of the drug for or with the knowledge it’s causing an abortion.”

Improving Access

Some states already target abortion pills in their laws. Indiana, for example, bans using abortion pills after 10 weeks of pregnancy.

The federal government has previously taken steps to ease access to abortion medication. The FDA in December 2021 lifted a rule requiring patients to go to certain health-care settings to get mifepristone.

Rebouché said people will likely take matters into their own hands to get access to abortion pills, pointing to an uptick in online orders for the medication following passage of Texas’s six-week abortion ban.

Now, with Roe overturned, “there will be extra-legal means that people will take,” Rebouché said. “I think we can expect to see a very complicated legal and access landscape.”

Individuals living in states with tight abortion controls have already turned to groups like Aid Access that rely on international providers to ship pills to US homes.

“The laws don’t at the moment criminalize the person taking the pills, they criminalize the provider,” and a court would have a tough time getting an overseas provider to show up in a courtroom, Rebouché said.

The organization Plan C also helps individuals find access to medication abortion online.

Likely, “those organizations will continue to play an important role” in a post-Roe world, said Greer Donley, an assistant law professor at the University of Pittsburgh’s School of Law.

Administration Pushback

President Joe Biden on June 24 spoke out against the court’s decision.

He said the administration would uphold access to FDA-approved medications and criticized “extremist governors and state legislatures” trying to curb access as “out of touch with the majority of Americans.”

The administration could take several steps to maintain access to mifepristone, such as expanding telemedicine options and making clear Americans have the right to import abortion pills from other states and providers, Gostin said.

“Right now the FDA doesn’t unequivocally state a patient can import an approved drug from outside the country,” he said.

He also noted that it’s “well within the federal government’s power” to require states that “have one national uniform standard” for drug access.

Nevertheless, health law professors say the fight for access is far from clear cut.

“It would be very hard for the FDA to override states” if they banned abortion medications, Parmet said.

“We’re looking at an avalanche of fights,” she said. “There may be be a fight with the FDA, especially if the FDA attempts to go further than more explicitly assuring access.”

—With assistance from Gina Heeb

To contact the reporter on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com

To contact the editor responsible for this story: Alexis Kramer at akramer@bloomberglaw.com