In countries around the globe that have long criminalized abortion, women and pregnant people have been using abortion pills for decades to end their pregnancies. Public health research has shown that abortion pills are safe and effective for terminating a pregnancy, even when people access pills and self-manage abortions outside the formal health care system. Since the decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and permitted states to broadly restrict access to abortion care at any stage of pregnancy, abortion foes and abortion advocates have been engaged in a pitched battle over access to abortion pills. The majority of abortions in America are now managed through pills rather than a procedure. Given this reality, the legal battles over abortion pills could determine who has access to abortion care on the ground not only in red states, but even in blue states where many people presume (incorrectly) that their access to comprehensive reproductive health care is safe.
In their aptly titled draft article, Abortion Pills, David Cohen, Greer Donley, and Rachel Rebouché tackle the complicated legal terrain on which the abortion pills war is currently being waged. The authors argue that the battles over abortion pills will transform public contestation about government regulation of abortion going forward. The article provides a much-needed overview for scholars and advocates struggling to keep up with the barrage of litigation and legislation governing abortion pills post-Dobbs. Even more importantly, the authors crystallize the consequences of these legal battles for access to care nationwide. As with this trio’s previous article, The New Abortion Battleground, which was cited by the dissenting opinion in Dobbs and predicted much of the legal fallout from that decision, Abortion Pills is an important contribution to the rapidly growing literature on the impact of overturning Roe.
The bulk of the article maps out the landscape of legal battles about medication abortion currently raging in the courts, state legislatures, and the Food and Drug Administration (FDA), as well as the consequences of those battles for the availability of abortion pills. This mapping out is no easy feat—the article deftly examines a broad array of legal maneuvers from constitutional law claims on preemption, to health law issues relating to telemedicine, to the intricacies of administrative law in the context of FDA regulation. The article analyzes the strengths and weaknesses of anti-abortion strategies to shut down access to abortion pills, as well as abortion advocates’ push back to expand access to medication abortion. Several key themes emerge from the authors’ thorough analysis. First, the article highlights how the fight over pills will determine access to abortion care nationwide—women and pregnant people in blue states cannot count on access to the gold standard of abortion care in their home states. A second theme arises from the authors’ apt analogy to the War on Drugs. Although there are obvious differences, the analogy works to highlight how the war on abortion pills—like the war on drugs—will fail to stop illicit access to pills and will have a discriminatory impact on communities of color and low-income communities.
In the first part of the article, the authors provide an overview of anti-abortion strategies to erect barriers to widespread abortion pill access. As the article emphasizes, “how revolutionary abortion pills are cannot be understated,” since pills allow for safe, effective abortion care even in states that ban it. (P. 12.) Due to the relative ease of access to abortion that these pills allow, anti-abortion strategists are deploying a multitude of legal tools to tamp down on medication abortion. Most notably, a federal lawsuit in Texas seeks to remove mifepristone from the market nationwide. Mifepristone is the first drug in the two-drug protocol approved by the FDA for medication abortion and is also used for miscarriage management. The second drug, misoprostol, is more readily available—and is also safe and effective for abortion care on its own. However, since abortion using misoprostol alone has more side effects, the two-drug protocol is generally preferred in the U.S. Although the Texas lawsuit has received outsized media attention, the authors importantly argue that even an adverse ruling from the Texas courts need not stop all medication abortion nationwide.
In addition to examining the Texas lawsuit, the article also explores numerous other tactics to restrict abortion pills, including: reviving the Comstock Act, a long dormant nineteenth century federal statute, in order to ban the mailing of abortion pills; redefining the location of abortion care to prosecute out-of-state travel for abortion pills; targeting information about abortion pills and promoting misinformation online; threatening those in the abortion pills supply chain with civil lawsuits or criminal prosecution; and criminalizing women and pregnant people themselves for use of abortion pills. The authors emphasize that this list is not exhaustive and that creative new strategies targeting abortion pills are on the horizon. The landscape is so rapidly shifting that the draft article does not yet reflect a new civil lawsuit filed by a man in Texas that will likely have a chilling effect on access to abortion pills. This Texas suit for wrongful death seeks $1 million in damages against each of three women who helped the man’s ex-wife gain access to abortion pills to terminate her pregnancy. As the article points out, anti-abortion lawyers do not need to win these lawsuits to impede access to abortion pills, because “ambiguity breeds confusion and chills care.” (P. 24.)
The next part of the article investigates the counter-offensive, a multi-pronged effort to increase access to abortion pills through state legislation, federal court litigation, and administrative advocacy. The authors describe these various efforts and set forth arguments for further expanding the availability of abortion pills both through telehealth and self-managed abortion care outside the formal health care system. For example, the article outlines how state legislatures could enact more expansive shield laws, which would protect health care providers from liability for providing telehealth abortion care to patients located in abortion ban states. Health care providers could also increase access to abortion pills by prescribing pills without a known pregnancy, using the centuries old practice of “menstrual regulation,” also called missed period pills. (Pp. 33-34.) In addition, the article argues in favor of state legislatures permitting pharmacists to prescribe abortion pills in order to increase access, especially along the borders of red and blue states.
Finally and perhaps most importantly, the article examines the ongoing battle surrounding the FDA’s approval of abortion pills, which will impact access to abortion medications nationwide. In an inverse of the Texas lawsuit seeking to ban mifepristone nationwide, a federal court case filed by a manufacturer of abortion pills argues that FDA regulation of mifepristone preempts state abortion bans. If successful, this litigation could protect access to abortion pills nationwide even in abortion ban states. The FDA could also expand access to abortion pills by removing administrative restrictions under its REMS program or changing its labelling requirements for mifepristone—or under a Republican President the FDA could do the opposite and further restrict access to abortion pills nationwide. In particular, the FDA could make it easier (or harder) to access abortion pills via telehealth, removing (or adding) obstacles to abortion care that flow from medically unnecessary mandates to visit a physician in-person in order to receive abortion pills.
The last section of the article sketches out the normative implications of the simultaneous explosion in both abortion bans and abortion pills. The authors argue that increased use of abortion pills, especially earlier in pregnancy, may transform how abortion is understood and debated by the public. For example, the authors highlight how abortion pills bring to the fore definitional blurriness between abortion and other less stigmatized forms of health care, such as miscarriage management and treatment for life-threatening ectopic pregnancies. They contend that, among other factors, the broader health care implications of banning abortion and the reality of increasing criminalization of pregnant women and people themselves for using abortion pills could undermine abortion stigma. Whether or not abortion pills can help to destigmatize abortion seems the least predictable part of the article’s analysis. Criminalization and the resulting increased secrecy surrounding abortion could also lead to further stigma, especially since people criminalized for pregnancy outcomes are disproportionately racial minorities and low-income. The authors fully recognize the discriminatory impacts of criminalizing pregnant people. As they succinctly summarize their argument: “The lesson for the War on Abortion Pills from the War on Drugs is clear: invasive, punitive state action will not stop abortion. Rather, it will harm public health, hurt those most vulnerable to state power, and incentivize informal networks to operate.” (P. 5.)
While providing a thorough snapshot of the current legal landscape on abortion pills, the article acknowledges that the law is fast-changing and that the future is uncertain. Abortion Pills is an essential read for those who want to understand the shape of the battles to come and the implications for health equity in abortion access nationwide. Pills cross borders much more easily than people—and thus will continue to be a prime target for abortion foes and a prime source of hope for abortion access.