Pills are changing the abortion debate

The US Supreme Court is considering whether a Mississippi law banning abortions after 15 weeks is constitutional. The governor of Oklahoma recently signed a near-total ban on abortion and the governor of Florida on Thursday a procedural ban approved after 15 weeks.

But as restrictive abortion laws were passed by state legislatures and Mississippi law was pending before the Supreme Court, a game changer has made abortions safer, more accessible and less expensive. It has the potential to change the legal landscape around which abortion battles are fought.

The US Food and Drug Administration in December Restrictions permanently lifted when delivering the pill mifepristone – which can be used to terminate a pregnancy before the 10th week – by post. The decision paves the way for more women — even in states that have implemented some of the toughest abortion restrictions — to see a clinician who uses telemedicine and avoid entering abortion clinics that are closing faster than ever, and then receive the abortion drugs in the mail.

Medical abortions already account for a growing proportion of abortions nationwide and, in some states, the majority of abortions. Mifespristone (also known as RU 486 or Mifeprex) blocks the hormone progesterone in a pregnant woman, triggering a period and essentially causing a natural, early miscarriage. The co-medication misoprostol expels the uterine contents.

But a number of states have already taken steps to ban the mailing of mifepristone, require women to receive the pills in person from a healthcare provider, and ban use of the pills before 10 weeks gestation.

To date, many abortion battles have been based on whether government restrictions on the Roe v. Wade Supreme Court decision of 1973, which found that the U.S. Constitution protects a pregnant woman’s right to an abortion and prohibits states from prohibiting the procedure before fetal viability, about 23 weeks.

But the expanded accessibility of mifepristone is creating a whole new legal landscape, one in which there are battles over whether states can enact restrictions that go against FDA guidelines and effectively regulate the Post.

The legal situation is complex.

States control the practice of medicine by licensing providers and medical facilities. In general, they can set whatever policies their legislators deem appropriate.

However, the guidelines restricting access to mifepristone raise legal issues because the FDA is the face of the federal government and has the final say when it comes to determining a drug’s safety and effectiveness. The FDA has determined that abortion pills are safe, reliable, and can be used up to 10 weeks into a pregnancy.

The supremacy clause of the US Constitution states that federal laws take precedence over state laws when the two conflict, and thus state laws cannot regulate drug policy. Currently, the American College of Obstetrics and Gynecology and abortion providers across the country are fighting state laws on this basis for reasons entirely different from those of the Mississippi case now before the Supreme Court.

Opponents of these pills “can’t beat us on the facts,” said George Hill, CEO of Maine Family Planning. Both drugs have an excellent safety profile, even better than Tylenol or Viagra.

In parallel, a lawsuit is pending over whether states can regulate the delivery of FDA-approved drugs by mail.

Four million recipes are delivered daily by post because it is convenient and often cheaper. Bland packages from pharmacies abroad do not give any information about their contents, whether diabetes pills, blood pressure medication or something else. Postal service regulations permit the delivery of any medication as long as it is dispensed by a pharmacist or medical provider and shipped to a specific patient. The postal service has never been regulated by state law.

Whether conservative states can legally force the Post to restrict shipments of FDA-approved drugs is unclear at this time. If the answer is yes, such a decision will have ramifications well beyond abortion drugs.

Another piece of the legal puzzle has to do with telemedicine consultations.

A number of organizations operate in a gray area involving state law and the Post. For example, AID Access offers telemedical advice from a European doctor, who then sends medicines from abroad. It was developed by Dutch doctor Dr. Rebecca Gomperts and has ministered to 57,000 American women in all 50 states over the past two years.

Such organizations emphasize that counseling, whether in person or via telemedicine, is imperative. However, because their legal status is still unclear in states other than Maine, the Maine Family Planning Association recommends women turn to such resources as the Repro Legal Defense Fund, Abortion Finder, and ineedana.com.

For Nicole Clegg of Planned Parenthood of Northern New England, the bottom line is that self-administered abortions are safe, here to stay, and preferable to backyard surgical procedures that were prevalent before 1973.

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