The U.S. Supreme Court is considering whether a Mississippi law banning abortions after 15 weeks is constitutional. Oklahoma’s governor recently signed a near-total abortion ban into law, and Florida’s governor Thursday approved a ban on the procedure after 15 weeks.
But as restrictive abortion laws have passed state legislatures and Mississippi’s law has been pending before the high court, a game changer has made abortions safer, more accessible and less expensive. It holds the potential to change the legal landscape over which abortion battles are fought.
The U.S. Food and Drug Administration in December permanently lifted restrictions on dispensing the pill mifepristone — which can be used to end a pregnancy before 10 weeks — by mail. The decision paves the way for more women — even in states that have instituted some of the toughest abortion restrictions — to consult a clinician using telehealth and without entering abortion clinics that have been closing at an accelerating pace, then receive the abortion medication by mail.
Medication abortions already account for a growing share of abortions nationwide and a majority of abortions in some states. Mifespristone (also known as RU 486 or Mifeprex) blocks the hormone progesterone in a pregnant woman, inducing a period and essentially causing a natural, early miscarriage. The companion medication misoprostol expels the uterine contents.
But a number of states have already moved to ban the mailing of mifepristone, require that women obtain the pills in person from a health care provider and prohibit the pills’ use before 10 weeks’ gestation.
Many abortion battles to date have been based on whether state restrictions on the procedure are constitutional under the Supreme Court’s 1973 Roe v. Wade decision, which found that the U.S. Constitution protects a pregnant woman’s right to have an abortion and prohibited states from banning the procedure before fetal viability, about 23 weeks.
But the expanded accessibility of mifepristone introduces a whole new legal landscape fought over whether states can pass restrictions that conflict with FDA guidance and effectively regulate the mail.
The legal situation is complex.
States control the practice of medicine through the licensing of providers and medical facilities. In general, they can set whatever policies their legislatures deem appropriate.
The policies restricting access to mifepristone, however, present legal problems because the FDA is the face of the federal government and has the last word when it comes to determining a medication’s safety and efficacy. The FDA has determined that abortion pills are safe, reliable and can be used up to 10 weeks into a pregnancy.
The Supremacy Clause of the U.S. Constitution states that federal law preempts state law when the two clash, and thus state laws cannot regulate drug policy. Currently, the American College of Obstetrics and Gynecology and abortion providers across the country are contesting state laws on this basis, for reasons entirely different from those of the Mississippi case now before the Supreme Court.
Opponents of these pills “can’t beat us on the facts,” said George Hill, CEO of Maine Family Planning. Both these medicines have an excellent safety profile, even more so than Tylenol or Viagra.
A parallel legal battle is pending as to whether states can regulate the delivery by mail of FDA-approved medicines.
Four million prescriptions are delivered by mail each day because it is convenient and often less expensive. Bland packages from out-of-state pharmacies give no clue as to their contents, whether diabetes pills, blood pressure medicines or something else. Postal Service rules allow for the delivery of all medicines as long as they are dispensed by a pharmacist or medical provider and mailed to a specific patient. The Postal Service has never been regulated by state law.
Whether conservative states can legally force the Postal Service to restrict the delivery of FDA-approved medicines is currently unclear. If the answer is yes, such a decision will have consequences that reach far beyond abortion medications.
Another part of the legal puzzle has to do with telehealth consultations.
A number of organizations operate in a gray zone surrounding state law and the mail. For example, AID Access provides a telemedical consultation by a European physician who then sends medicine from abroad. It was founded by Dutch physician Dr. Rebecca Gomperts, and over the past two years has served 57,000 American women in all 50 states.
Such organizations emphasize that a consultation, whether in person or by telehealth, is imperative. But because their legal status is still unclear in states other than Maine, the Maine Family Planning Association recommends that women turn to such resources as such as the Repro Legal Defense Fund, Abortion Finder, and ineedana.com.
For Nicole Clegg of Planned Parenthood of Northern New Engand, the bottom line is that self-managed abortions are safe, here to stay, and are preferable to the backyard surgical procedures prevalent before 1973.