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Battle Over Abortion Pill Spreads from Courthouses to Statehouses

June 02, 2023 (7 min read)

It’d be understandable if you’re confused about the legal status of the abortion pill these days. A lot has happened with the drug mifepristone in the last few months.

In early April, U.S. District Judge Matthew Kacsmaryk of Texas – an appointee of President Trump – ruled that the Food and Drug Administration (FDA) had improperly approved mifepristone in 2000 and said it should be pulled from retailers’ shelves.

At virtually the same time, however, U.S. District Judge Thomas O. Rice of Washington – an appointee of President Obama – made an opposite ruling, that the U.S. should not make any changes to restrict the availability of mifepristone in states where Democrats have sued to protect women's access to it.

The Department of Justice appealed Judge Kacsmaryk’s ruling, first to the Fifth Circuit Court of Appeals, which partially stayed it, then to the U.S. Supreme Court, which issued a temporary administrative stay. The Supreme Court kicked the issue back down to the Fifth Circuit, which heard arguments on May 17 and is expected to make another ruling soon.

The legal back-and-forth has been so confusing that a recent poll by the Kaiser Family Foundation found that nearly half of adults (45 percent) are “unsure” whether medication-induced abortions are legal in their state.

In fact, for the time being at least, mifepristone is still very much legal in the 37 states where medically induced abortion is legal. But with the case hanging in the balance, and the Supreme Court’s decision last year overturning Roe v. Wade, Democrats in the states are working to preserve access to the drug while Republicans are working to restrict access to it or outright deny women from obtaining it.

Democratic AGs Join Forces in 17 States

Receiving perhaps the most news coverage has been a coalition of Democratic attorneys general from 17 states—Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont and Washington—who are fighting to keep mifepristone on the market.

In an effort to outmaneuver Judge Kacsmaryk, the attorneys general filed the case before Judge Rice, asking him to strike down a handful of restrictions the FDA places on mifepristone, such as requiring patients to sign a form acknowledging the risks of taking the drug and obtaining their prescription from someone certified by the federal government.

Rice’s ruling preserved, for the time being, access to the drug in at least the 17 states involved, as well as the District of Columbia.

“Our coalition worked around the clock to get the issue of the unwarranted and unlawful Risk Evaluation & Mitigation Strategy (REMS) restrictions on this medication before a federal judge in Washington,” Oregon Attorney General Ellen Rosenblum said in a press release after the ruling. “The judge not only recognized the irreparable harm that would occur in our states should mifepristone be removed from the market, but also that we are likely to prevail on the merits of the case when it goes to trial.”

Blue State Legislatures Joining Fight Too

Democratic lawmakers are also waging battles over mifepristone within their state legislatures.

The Democrat-controlled Michigan House of Representatives, for example, passed a resolution (HR 72) denouncing Judge Kacsmaryk’s ruling. The Democrat-dominated Maryland legislature passed HB 812/SB 786, restricting the disclosure of personal medical records about the use of mifepristone. The equally Democrat-controlled Washington State Legislature approved SB 5768, which requires the state Department of Corrections to purchase and dispense mifepristone.

The New York Legislature—yes, also Democrat controlled—approved AB 1395 to ensure students attending public colleges and universities in the empire state have access to medically induced abortions. That bill was sponsored by Assemblyman Harvey Epstein (D), a vocal proponent of mifepristone. In April, after the dueling court rulings, Epstein said on the Assembly floor, “Reproductive rights are under attack and this is an opportunity to stand up and fight back,” according to the AMNY Newsletter.

Still pending in the New York Legislature is AB 6311, also by Epstein, which would require the Commissioner of the New York State Office of General Services to publish a list of physicians in the state who could legally dispense mifepristone but refuse to do so.

Republican Lawmakers Propose Bans—Even in Democrat-Controlled Legislatures

Republican state lawmakers, on the other hand, have introduced several proposals across the country to restrict or ban access to mifepristone.

In the Iowa legislature, which is controlled by Republicans, there are two pending proposals that would effectively ban mifepristone, HF 146 and HF 510. Three bills pending in the Republican-majority South Carolina legislature would do the same, HB 3552 and HB 3774, both by Rep. John R. McCravy III (R), and SB 240, by Sen. Billy Garrett (R). The Kansas Legislature, also Republican controlled, has a similar bill pending too, SB 286.

Pending in the North Carolina legislature (again Republican dominated), is HB 788, by Rep. Allen Chesser (R), which would require physicians prescribing mifepristone to inform their patients that the effects of the drug can be reversed.

The red Texas Legislature considered bills to outlaw abortion pills (HB 2690), create a legal liability for manufacturers of mifepristone (HB 4876) and prohibit purchases of abortion pills with a credit card (SB 1140).

In the Democrat-controlled Rhode Island Senate, Sen. Jessica de la Cruz (R) has pending SB 397, which would require any physician who medically induces an abortion using mifepristone to report it to the state Department of Health.

Another Republican state lawmaker bucking his Democrat-controlled legislature is Hawaii Rep. Elijah Pierick. He’s authored HB 1275, which would ban all medically induced abortions in the state.

Mifepristone Bills Introduced in Nearly Half of States

So far this year, according to the LexisNexis® State Net® legislative tracking system, lawmakers in 23 states have introduced legislation dealing with mifepristone, the first of two drugs administered in medication abortions. Seven of those states have enacted such measures.

Republicans in Congress are also targeting mifepristone. The House Agriculture, Rural Development, Food and Drug Administration Appropriations Subcommittee recently passed legislation that included a rider to revoke FDA approvals for where patients are allowed to access the medication.

Companies Left to Wait and Watch

The legislative battles over mifepristone are just the latest front in the Left and Right’s ongoing culture war over abortion, an incredibly incendiary fight that can put members of the private sector in awkward, or even damaging, situations.

Consider the pushback Walgreens faced after it announced that it will not dispense abortion pills in states where the medication is still technically legal but Republican attorneys general have threatened legal action.

Walgreens, America's second-largest pharmacy chain, said it decided against dispensing abortion pills in states like Alaska, Iowa, Kansas and Montana out of an abundance of caution as abortion policies shift. Whether you personally agree with the decision or not, Walgreens’ move has a certain business logic, attempting to insulate the company from legal threats.

However, Walgreens’ actions angered California’s Democratic governor, Gavin Newsom, who announced that the Golden State would cease doing business with the chain, an outcome that could ultimately prove to be at least as damaging to the company as running afoul of the Republican AGs.

“It’s certainly a fraught issue,” said Attorney Rodney Miller of the LexisNexis® Practical Guidance Team.

Miller said he’d advise any provider or private sector entity to proceed cautiously when approaching this issue. The Supreme Court’s ruling to overturn Roe essentially kicked regulation of abortion back to the states, so he said for businesses “the starting place has to be the current state law.”

But that’s just a starting place, he said. This is a complex issue with a lot of moving parts, so moving slowly and carefully is the best approach from a compliance perspective.

“This is one of those issues where the last thing you want to be is at the vanguard of new law,” he said.

—By SNCJ Correspondent BRIAN JOSEPH

Please visit our webpage to connect with a State Net representative and learn how the State Net legislative and regulatory tracking solution can help you identify, track, analyze and report on relevant legislative and regulatory developments. 


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