The fight over medication abortion continues to escalate in 2023 as the battle over reproductive health rights rages on. More than half of all abortions in the U.S. are now performed by way of medication abortion, according to the Guttmacher Institute, a research organization that supports abortion rights.
This week, the Department of Justice announced that the U.S. Postal Service can legally deliver prescribed abortion medication, even in states where abortion is illegal.
“The DOJ memo is clearly another example of the Biden administration's push for abortion on demand,” Katie Glenn, state policy director at Susan B. Anthony Pro-Life America, told Yahoo News.
The DOJ’s announcement came on the heels of the U.S. Food and Drug Administration giving the green light for pharmacies that complete a certification process to dispense prescriptions for mifepristone, the first pill taken in a two-drug regimen in medication abortion.
“This is truly unique to no other drug. The FDA is a federal agency that is empowered to regulate, to study, to review all of the medical evidence about drugs and decide what is right for Americans,” Jenny Ma, senior counsel for the Center for Reproductive Rights, told Yahoo News. “Because medication abortion is so politicized, it has kind of been this outlier.”
Previously, the pills could only be obtained directly from doctors, clinics or from a handful of mail-order pharmacies. The FDA’s announcement solidified a pandemic-era change made in December 2021, when the agency allowed them to be sent by mail rather than requiring them to be dispensed in person.
“It's setting up women in a horrible situation because they're not getting screened for medical contraindications, they're not getting access to follow-up care, which the FDA and the Mayo Clinic still say is important,” Glenn told Yahoo News.
After the Supreme Court overturned Roe v. Wade last June, which guaranteed the federal right to an abortion, more than a dozen states have implemented strict bans on most abortions, including medication abortions. Many of these restrictions require that abortion pills be taken in the presence of the prescribing physician.
Since the fall of Roe v. Wade, a study led by researchers at the University of Texas at Austin published in the Journal of the American Medical Association, found an increase in requests for abortion medication increased in 30 states, with the largest surges in states with complete or near-total bans on abortions.
Now that state legislatures are preparing to reconvene, many for the first time since Roe was overturned, conservative-led legislatures could attempt to take additional action to further restrict medication abortion.
Yahoo News spoke with Ma and Glenn to get some clarity on what legal challenges lie ahead for medication abortion in 2023. (Some answers have been edited for length and clarity.)
Yahoo News: Does the FDA’s decision to allow certified pharmacies to dispense prescribed abortion medication change anything for people living in states with abortion bans?
Jenny Ma: Medication abortion care still remains subject to abortion bans, and many of them are medically unnecessary restrictions in so many states. So the FDA’s decision, unfortunately, will not have an impact on them. But I think what it truly does is it really highlights that Americans should not be receiving different types of health care based on where they live. None of these bans on medication has a basis in science. It’s purely political.
What are your thoughts on the FDA’s decision to allow certified pharmacies to dispense prescribed mifepristone?
Katie Glenn: It’s very disappointing. I think it’s a continuation of the patient abandonment that we’ve seen from the FDA for the past couple of years. In 2016, they stopped collecting data on adverse events and then use that as a justification to say that there are no adverse events that would prevent this policy. So no data to collect, no data to point to, a pretty, pretty slick deal for the FDA. Now they’re saying that even though to be a certified prescriber, you need to be able to screen for and diagnose ectopic pregnancies, a woman doesn’t actually need that screening or diagnosis because they say that a doctor does not need to see a patient in person. So unfortunately now for many women, the only medical professional that she’ll interact with potentially is a pharmacist.
That’s not what they were educated to do. That’s not their job. And yet that’s now the only person that she may see because many of these websites don’t even do a telehealth call or a phone call, they just are an online portal where you fill in your information. It’s putting pharmacists in a bad situation to be set up to answer questions that they don’t know how to answer and can’t answer. And to participate in abortion, if they’re having to explain this whole process.
What are some of the foreseeable challenges to medication abortion in 2023?
Ma: [In Texas,] there’s a lawsuit that was filed by anti-abortion groups called Alliance for Hippocratic Medicine v. the FDA. This is a lawsuit that was filed basically asking a Texas trial court judge to remove mifepristone from the entire market — and that’s not just in Texas, that’s nationwide. So that is a radical ask and a very radical lawsuit that the anti-abortion side has brought, and that’s one to look out for. (A decision could come as early as February. If the judge, appointed by former President Donald Trump, decides to grant the request to temporarily block the FDA approval of mifepristone, the sale and shipment of the drug would have to stop immediately.)
I also wanted to highlight a citizen's petition that was brought forth by Students for Life of America. These are anti-abortion student groups found in colleges and different graduate schools across the U.S. This was brought by individuals as well as those organizations. Basically, they have petitioned the FDA and have asked for several environmental restrictions on medication abortion. (Restrictions proposed require any doctor who prescribes abortion medication to be responsible for disposing of fetal tissue rather than flushed down the toilet into the wastewater.) Students for Life is an anti-abortion group. It's not an environmental group. So this is really shamelessly co-opting the environmental movement agenda for their own agenda.
This petition I think is meant to bolster the recent lawsuit, attempting to undo the FDA's approval of mifepristone and I think it just shows the kind of extreme radical asks that are being made because now that the majority of Americans use medication abortion as their chosen form of abortion care, ending at Roe was never enough for anti-abortion organizations. I think that these more radical pushes will be what we see in 2023 because the anti-abortion side has just been more emboldened.
Are there any plans in place for Susan B. Anthony Pro-Life America to work with state legislatures on enforcing abortion medication restrictions?
Glenn: Around 20 states currently have prevented pill-by-mail abortion. They do require that in-person care prior to prescribing, and we think that's great, every state should have that in their policy. There are several states that currently don’t or could certainly strengthen their laws. And I think Georgia’s one [that] will likely be engaging in. There was a bill last year [Senate Bill 456] that came up short at the last minute, and so I think that’s definitely something their lawmakers are thinking about, and their lack of an explicit requirement for in-person care has been exploited over the past several years by the abortion industry. Companies have done studies in Georgia where they send pills by mail. So this is a real problem for their lawmakers and I think that the FDA’s recent statements are definitely going to be energizing for the members of their legislatures who see this as an issue.
Could prosecutors in states that ban medication abortion go after companies outside of the state that provides abortion medication?
Ma: If a state prosecutor is so emboldened to do such a thing — that is something that will likely be challenged. I think that the answer is that it will just have to be challenged.
The Washington Post reported that Texas state lawmakers are preparing legislation that would essentially enable internet providers to block certain medication abortion websites. What sort of red flags does that raise?
Ma: I think that there would be many constitutional arguments against such a piece of legislation that Texas is thinking about, or other states. From the state level every year anti-abortion legislatures just come up with more and more ways to restrict care from their citizens. I think a piece of legislation like that is incredibly problematic.