72 Pages Posted: 26 Jan 2023 Last revised: 15 Mar 2023
Date Written: February 1, 2023
Abortion is now illegal in roughly a third of the country, but abortion pills are more widely available than ever before. Though antiabortion advocates and legislators are attacking pills with all manner of strategies, clinics, websites, and informal networks are openly facilitating the distribution of abortion pills, legally and illegally, across the United States. This Article is the first to explain this defining aspect of the post-Roe environment and the novel issues it raises at the level of state law, federal policy, and on-the-ground advocacy.
This Article first details antiabortion strategies to stop pills by any means necessary. These tactics include a federal lawsuit to remove abortion pills from the market, a revival of the long-unenforced Comstock Act’s ban on mailing abortifacients, a redefinition of abortion’s location to chill abortion travel, information and supply chain bans, and attempts to criminalize people who take abortion pills. We then consider the opposing movement to increase access to abortion pills: abortion shield laws that protect cross-border telehealth, pharmacist prescription of abortion pills, and efforts to evade abortion bans through missed period pills and advanced provision. Finally, we examine how the US Food and Drug Administration (FDA) can use its powers to increase or decrease access to pills, including lifting the unique restrictions on medication abortion and changing its label or asserting that FDA rules governing medication abortion partially preempt state abortion bans.
The Article concludes by offering the first analysis of how, after Roe’s reversal, abortion pills and their attendant controversies will transform the abortion debate in this country. With pills, abortion will no longer be controlled by state governments and the medical establishment; rather, informal and underground networks will meet much of the demand for abortion pills, cutting out gatekeepers. Pills’ wide availability will also reshape the definition of abortion, which is ill suited for the ambiguities of drug provision, and destigmatize abortion care. At the same time, however, attempts to criminalize people who provide or use pills will exacerbate the public health and criminal justice consequences that new abortion bans have wrought, entrenching existing class and race differences. Thus, as abortion pills proliferate—both within and outside of law—abortion inequities could as well. Ultimately, these emerging legal issues will profoundly alter how Americans think about abortion.
[This version was updated March 14, 2023, to reflect developments in the federal court challenge to the FDA's approval of mifepristone.]
Keywords: Dobbs, Roe, Pills, Medication Abortion, Abortion
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