Editorial: A looming battle over abortion pills threatens cherished freedoms
Following the leak of a draft majority opinion, expectations run high that the U.S. Supreme Court soon will overturn the 1973 Roe v. Wade decision affirming the constitutional right of women to abortion, and we have an idea of what abortion foes will target thereafter: pills.
In recent years, a two-drug combination approved by the Food and Drug Administration has become a common method for ending pregnancies in the first trimester.
As most red states drove away providers of surgical abortions, women increasingly turned to medication, which has been legal in the U.S. since 2000. More than half of abortions in this country are believed to be carried out using pills, and we expect the share to increase after the court’s widely anticipated decision.
This scenario sets up a serious conflict. Those celebrating the end of Roe recognize that the upcoming ruling would lose its impact if most people could still get an abortion by taking a few widely available pills, especially if those pills are available by mail order. Even as blue states like Illinois champion their new laws to ensure access, anti-abortion advocates are campaigning to expand existing state laws that limit abortion and eliminate access to the medication once the high court acts.
This page has long supported a woman’s right to choose, grounded in our belief in her autonomy over her body and our commitment to individual freedoms. We accept that once Roe is gone, each state will take its own path on this divisive issue, and some probably will impose merciless total bans.
The next logical step in enforcing those bans should worry everyone. Additional state efforts to restrict access to abortion pills could challenge the primacy of the Food and Drug Administration in regulating medications nationwide. They could erode the freedom to make personal health decisions, conduct interstate commerce and protect privacy online.
Abortion by medication starts with mifepristone. Then, sometimes a day or two later, a second drug called misoprostol is taken. The process is safe and effective, though often uncomfortable. It can be self-managed at home, and it typically costs no more than a few hundred dollars.
The FDA will be under political pressure to further restrict the pills, and its history so far is troubling. The agency only recently removed some medically unnecessary restrictions, while arbitrarily keeping others.
In 2016, it expanded the time frame when abortion drugs could be taken from seven weeks to 10 weeks into a pregnancy, and during the pandemic it lifted a needless requirement that the first pill be dispensed during an in-person doctor visit, thus allowing it to be prescribed by telehealth and delivered through the mail.
The FDA continues to require that doctors and pharmacies be certified to provide the first drug and requires patients to sign an agreement that they understand the drug’s risks. Decades of data and the FDA’s own findings show there’s no special danger justifying those rules, or even its 10-week restriction. To maintain its credibility and autonomy, the agency needs to regulate drugs based on what’s appropriate for the health of Americans, not politics.
Because federal law preempts state law, the FDA in theory should have the last word on how the pills can be dispensed across the U.S. But regulation of the medical profession is generally handled at the state level, and court challenges from anti-abortion states could result in weakening the FDA’s oversight of all medications.
As conservative states do whatever’s necessary to stop their residents from getting abortion pills widely available elsewhere, we see other troubles ahead. More aggressive laws making it a criminal offense to cross state boundaries for abortion services, use telehealth to obtain the prescriptions or receive pills through the mail could impede access to health care unrelated to abortion.
Another potential casualty of anti-abortion pill measures could be the privacy afforded by the internet, where women needing the procedure often seek guidance. Web searches, app data and phone records could be viewed as evidence in states that outlaw abortion, prompting legal efforts to obtain browsing histories and crack encrypted messaging.
Deceptive practices on the web also could create problems. Anti-abortion activists already use phony sites to intercept women seeking to end pregnancies, and we anticipate new sites aimed at deceiving women into providing information that could be used against them or their pill suppliers.
The online sale of counterfeit drugs, a problem that proliferated during the pandemic, could become more difficult to stamp out if the end of Roe heralds a surge of sites deliberately peddling fake abortion pills to women believing they’re ordering real ones.
These concerns are what-ifs, and the past few weeks have seen pro-abortion rights forces using the court’s draft decision — which is not the court’s last word — to drum up support by floating many frightening scenarios, some more plausible than others. We believe the looming fight over abortion pills is indeed a plausible threat to cherished rights that needs to be taken seriously. In many cases and for a wide variety of good reasons, most Americans see these pills, typically taken within the first 11 weeks of a pregnancy, as preferable to surgical abortions.