Legal battles begin over abortion pill as several states move to restrict or ban abortion
Medication abortion is approved by the FDA. It can be sent through the mail. President Biden signed an executive order to protect it. So, with these federal safeguards can states restrict access to it?
WASHINGTON- The federally-safeguarded abortion pill is expected to be the subject of legal challenges as several states seek to ban abortion or highly restrict it.
For more than 20 years, the U.S. Food and Drug Administration has approved medication abortion and has determined it to be safe and effective. The medication can also be sent through the mail. Yet, those safeguards are being challenged in court after the U.S. Supreme Court overturned the nearly 50-year-old Roe vs Wade and returned abortion rights to the states.
The Guttmacher Institute reports medication abortion makes up for more than half of all abortions in the United States. It’s a two-drug combination of Mifepristone and Misoprostol that is used to terminate early pregnancy, medical experts say, up to 10 weeks.
President Joe Biden signed an executive order to protect reproductive healthcare services like the abortion pill. He directed the U.S. Department of Health and Human Services to take additional action to protect and expand access to it “to ensure that medication abortion is as widely accessible as possible.”
Despite action by House lawmakers in Congress, measures to codify Roe v Wade into federal law have not passed the U.S Senate.
Washington News Bureau reporter Jamie Bittner spoke to Katie Keith, director of Health Policy and The Law Initiative at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center, about some of the biggest legal battles that could lie ahead as several states seek to restrict or ban abortion..
The risk for people and providers
“I think most of these laws are really designed to have a chilling effect to scare people into either not seeking the care or not undergoing the procedure or taking the steps they want to take. And, prevent providers from performing the procedure,” said Keith.
The Washington News Bureau asked Keith if people could face legal issues or criminal charges if they would take the abortion pill or help someone gain access to the pill in a state where abortion is banned or restricted.
She said, “it’s going to vary by state and it’s pretty wide open. I think part of it is going to be how aggressive the states that have banned abortion are going to be.”
She noted, however, that many states right now seem to be more focused on providers than people when it comes to legal action. However, she noted that may not be the case for long.
“What is concerning though is how some of these laws are going to get enforced and implemented. Especially ones that include a reference to personhood, for example. And, so if you do have an abortion are women going to be targeted for homicide or something like that given some of these changes. So, there’s some questions about that. What I would not want anyone to take away from this is that women are currently under threat for taking action by accessing medication for abortion at this stage,” she said.
Keith said prosecutors and attorneys general in some states have publicly announced that they will not target citizens or that they will not cooperate with investigations into citizens. However, she once again notes it will vary by state.
She stressed no one should break the law. So, to make sure everyone know what their rights are, she suggests first turning to trusted sources such as the Center for Reproductive Rights, the National Women’s Law Center, or a lawyer.
Keith said, states like Texas and Oklahoma have also implemented ‘bounty hunter laws’ where those who aide or abet an abortion could face civil liability even if they do not face criminal charges.
She added the pressure on providers may make doctors more wary of possible legal repercussions or the risk of losing their medical license.
In 2000, the FDA approved medication abortion, Mifeprex (mifepristone) in combination with misoprostol, to end an early pregnancy.
Due to that federal approval, one manufacturer, GenBioPro, has already filed a lawsuit in Mississippi as it claims the state is trying to make it harder for people to get the pill. It argues the federal approval should override state restrictions.
“The argument that is being made is that the federal government has said that this is a safe and effective drug. It’s been blessed at the federal level. Can states restrict this on a state by state basis? We really haven’t seen that before with other drugs,” said Keith.
In 2019, the FDA also approved a generic version of the drug.
The President’s executive order and sending the abortion pill through the mail
Keith said the constitution puts the job of overseeing the mail in the hands of the federal government.
The abortion pill, as mentioned, is allowed to be sent through the mail.
“And so I think the question is going to be, are states going to try to come up with restrictions over the mail itself? What do those look like?” said Keith. “And again, I think that’s something that has to be litigated. But I would emphasize, I think both the kind of FDA approval drugs and the mail itself.... these are federal programs that should be regulated that way. And, the states are probably going to try to step in and usurp that role. And, hopefully we see that the federal law governs here.”
Keith noted the question also raises discussion over states trying to assert jurisdiction over people living outside of the state. This, she adds, gets even more legally complex as several officials in states where abortion is legal are promising to be ‘safe harbor states.’
“And it raises all kinds of questions. I would emphasize... you’re starting to see prosecutors in both states where it’s legal and where it’s not step in and say we’re not, we would never enforce this. I’m not, you know, in my jurisdiction, I’m not going to be going after women. I’m not going to be going after providers in some of the states where it remains legal,” Keith said.
The pandemic has also surged the use of telemedicine.
Keith adds the President’s executive order is ‘powerful.’ Yet, even with the full backing of the White House, the FDA, and the Department of Justice, she said many of the issues surrounding access to things such as the abortion pill will fall to the courts.
“I think we’re going to see many more abortion related cases up at the Supreme Court as a result of this,” she said.
She added, even with executive action from the President, “I think none of it is going to go far enough to restore the right to abortion, that was, as you said, in place for 50 or nearly 50 years and was just overturned.”
Waiting for clarity from the courts
Keith said it could take ‘decades’ for courts to wade through the legal challenges to abortion restrictions and rights.
“I would just emphasize, I think one of the things that was given as a rationale for this big Supreme Court decision was sort of the unworkability of the prior standard that we had based on a Supreme Court case called Casey. The idea was that... states can restrict abortion or regulate it, but you can’t place an undue burden on women.... it was regularly litigated. One of the reasons that the court sort of overturned that case and Roe versus Wade was this idea that, oh, that’s too hard of a standard. It’s led to all of these lawsuits and all this litigation. And I guess what I want to emphasize is that the idea that this will make it easier, we’ll just return this issue to the states, I think it’s not the case,” said Keith. “Just even in the conversation we’ve been having, the number of lawsuits and legal issues and challenges that this is going to raise, I think it’s all going to be sort of decided by the courts. It’s going to be extremely unworkable and vary state by state. And, it’s going to take decades to sort of figure out what what the state of the law is going to be.”
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