As the U.S. Supreme Court weighs the fate of Roe v. Wade, advocates on both sides of the fight are already positioning themselves for the next battle, over medication abortions or so-called abortion pills.
Why it matters: The pills for a medication abortion, mifepristone and misoprostol, are FDA-approved for use in the first 10 weeks of pregnancy. The FDA lifted long-standing restrictions in December and paved the way for doctors to prescribe them online and mail them to patients.
What they’re saying: “That’s where the entire conflict is going to turn,” Mary Ziegler, a law professor at Florida State University specializing in reproductive health, tells Axios.
- Since those drugs can only be used before 10 weeks of pregnancy, the right to surgical abortions will continue to loom large, Ziegler says.
- Yes, but: “The kind of low visibility and flexibility of medication abortion is going to be really, really consequential” if the high court strikes down or guts Roe, she adds.
State of play: The abortion terrain has already shifted even before justices decided to review Mississippi’s 15-week abortion ban, which poses a direct challenge to Roe.
- Medication abortion accounted for 54% of all U.S. abortions in 2020, up from 39% in 2017, according to the Guttmacher Institute.
The legal precedent: One of the cases that may be key in future arguments over limiting access to the pills involves a lawsuit over a painkiller. In 2014, Massachusetts instituted an emergency ban on the opioid Zohydro, saying the drug was dangerous and addictive.
- But a federal judge struck down the ban, saying a state couldn’t take a drug off the market that the FDA had deemed safe, Rachel Rebouché, interim dean of Temple University’s law school, tells Axios.
- Experts might argue that means states don’t have the authority to ban FDA-approved drugs, including abortion drugs. Some might even go so far as to argue that the FDA’s policies would preempt any attempt by states to ban abortion, Rebouché said.
- “That’s a stretch,” she says. “I think a lot of people think that’s a difficult argument to make because states for so long have been able to regulate the practice of medicine and a law that says you can’t perform an abortion seems like regulating the practice of medicine.”
What’s next: Red states will likely pursue a strategy where they ban abortion and the use of drugs for abortion, but not the drugs themselves, according to experts who spoke with Axios.
- “How a state crafts its law could impact how a court reviews it,” Greer Donley, an assistant law professor at the University Pittsburgh Law School, tells Axios.
Between the lines: This could all be a moot point since there are practical barriers to banning medication abortion.
- “The reasons you see state banning medication abortion is because anti-abortion legislators recognized all too clearly that it is going to be really hard to track down pills you can take in your home and receive by mail,” Rebouché says.
That is already is causing skirmishes between states.
- For instance, Missouri is also seeking to find ways to penalize out-of-state providers for providing any assistance in obtaining an abortion, Rebouché says.
- On the flip side, Democratic-led states California and Connecticut are already considering bills to protect abortion providers from lawsuits filed by officials in other states, creating so-called havens.
- “You’ll see not only this tension between state law and federal law … but you’ll see really intense interstate conflict,” Rebouché says.
What to watch: While previous abortion laws targeted those that help women seeking abortions, such as providers, it’s possible the approach may change in a world with self-managed abortions.
- “Once providers are out of the equation or are outside the state’s jurisdiction, the only way to truly enforce these laws is to go after the pregnant people themselves,” Donley says.
- “That’s historically something the anti-abortion movement has not wanted to do,” she adds. “But I’m curious if that’s going to change.”