Abortion opponents shift focus to pills with lawsuits, proposed laws and possible federal action

[December 23, 2024]  By GEOFF MULVIHILL

Opponents of abortion are increasingly focusing on restricting access to pills, which are the most common way to end a pregnancy in the U.S.

This month, the Texas attorney general's office filed a lawsuit against a New York doctor, saying she violated Texas law by prescribing abortion pills to a patient there via telemedicine. The suit represents the first lawsuit of its kind and could lead to a legal test for the New York law designed to protect providers there who prescribe the drugs to patients in states with abortion bans.

Anti-abortion officials are taking other steps, too, through legislation and lawsuits.

Abortion rights advocates are also concerned that President-elect Donald Trump's administration could take action to restrict access if it chose to.

Pills are the most common means of abortion

By the time the U.S. Supreme Court overturned Roe v. Wade in 2022 and opened the door for states to ban abortion, over half of all abortions were obtained using medication, usually a combination of the drugs mifepristone and misoprostol.

The drugs are different than Plan B and other emergency contraceptives that are usually taken within three days after possible conception, weeks before women know they're pregnant. Studies have found they're generally safe and result in completed abortions more than 97% of the time, which is less effective than procedural abortions.

By last year, nearly two-thirds of abortions were from medications, according to a tally by the Guttmacher Institute, a research organization that supports abortion access.

Much of the growth has been through abortion pills prescribed via telehealth and mailed to patients. A survey conducted for the Society of Family Planning found that by the first half of 2024, such prescriptions accounted for about one-tenth of abortions in the U.S.

That number has risen rapidly since 2023 when some Democratic-controlled states started adopting laws that seek to protect medical providers in their borders who prescribe abortion pills via telehealth to patients in states where abortion is banned.

“Telehealth for abortion has been a huge success,” said Ushma Upadhyay, a professor at the Center of Health and Community and the University of California San Francisco. “It has helped people in an incredible way.”

Texas is going after a New York doctor despite a law intended to protect prescribers

Texas Attorney General Ken Paxton rolled out a new strategy in the fight over pills this month when he sued Dr. Maggie Carpenter, who is based in New York, alleging she prescribed and sent pills to a Texas woman.

New York is one of at least eight states with a law intended to protect medical providers who prescribe abortion pills to patients in states with bans.

If Texas prevails upon a judge to block Carpenter from prescribing in the state, it's unclear what would happen next. New York's shield law would bar it from being enforced in New York, said David Cohen, a professor at Drexel University’s Thomas R. Kline School of Law.

Cohen said he expects any ruling would not have a major chilling effect on other doctors who prescribe out-of-state patients. “They certainly seem undeterred by legal risk,” he said.

And, he said, like illegal drugs, they'll continue to be available if there's a demand for them. Cohen said Paxton “is going to plug one hole if he succeeds. There's no way he plugs them all.”

Another lawsuit from states is trying a different way to restrict pills

Pill prescribing has already withstood one key effort to block it. The U.S. Supreme Court this year ruled that a group of anti-abortion physicians and organizations that represent them lacked the legal standing to force the undoing of federal approvals for mifepristone.

Mifepristone tablets are seen in a Planned Parenthood clinic Thursday, July 18, 2024, in Ames, Iowa. (AP Photo/Charlie Neibergall, File)

The state attorneys general from Idaho, Kansas and Missouri responded in October with a legal filing contending that they can make such an argument. Instead of focusing on the drug’s initial approval in 2000, they’re looking at later changes from the U.S. Food and Drug Administration that allow its use for the first 10 weeks of pregnancy and telemedicine prescriptions.

There hasn't yet been a ruling on their case. When there is, it will likely be appealed to a higher court.

States are also considering laws aimed at abortion pills

This year, Louisiana became the first state with a law to reclassify both mifepristone and misoprostol as “controlled dangerous substances.” The drugs are still allowed, but medical personnel have to go through extra steps to access them.

Some doctors said in a legal challenge that the change could cause delays in administering them in emergencies, such as when a woman is hemorrhaging after giving birth.

Dr. Jennifer Avengo, director of the New Orleans Health Department, said that in the first few months of enforcement, she did not hear of any cases where the drugs could not be accessed in time.

Additional states are considering ways to restrict abortion pills in their 2025 legislative sessions.

In Tennessee, a Republican state lawmaker has proposed creating a $5 million civil liability against those who deliver or help access abortion pills with the intent of helping someone end a pregnancy.

Rep. Gino Bulso said he filed the bill after learning that abortion pills were being sent to Tennessee despite state law prohibiting such actions. “I began to think about how we might be able to both provide an additional deterrent to companies violating the criminal law and provide a remedy for the family of the unborn children,” he said.

A proposal in Missouri would make it a crime to deliver mifepristone or other drugs with the intent of causing an abortion. In November, the state's voters adopted a constitutional amendment to allow abortion until fetal viability — which is somewhere past 21 weeks into a pregnancy, though there's no fixed timeframe.

The federal government could take steps to regulate the pills, too

Trump's administration also could take action on the pill policy.

One approach that abortion rights advocates have warned about — and which some abortion opponents have suggested — includes enforcing an 1873 law against pills that bans mailing medications or instruments used in abortion. President Joe Biden's administration has declined to do so.

The FDA could also change its approvals of the drugs, even without being forced to do so by a court ruling.

During his campaign, Trump flip-flopped on abortion policy and at points attempted to distance himself from abortion opponents. Since he won the election, though, he has nominated abortion opponents to administration posts.

In an interview with Time magazine published this month, he gave rambling answers to questions about pills. He said he intended to maintain access but also left the door open to changing his mind.

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Associated Press reporter Kimberlee Kruesi contributed to this article.

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