Freedom Not to See a Doctor: The Path to Over-the-Counter Abortion Pills
2023 Wisconsin Law Review 1041.
American University Washington College of Law Legal Studies Research Paper Series
84 Pages Posted: 25 Mar 2023 Last revised: 27 Mar 2024
Date Written: March 17, 2023
Abstract
American courts and lawmakers are engaged in an epic struggle over the fate of abortion pills. While some antiabortion activists are attempting to drive the pills off the market entirely, supporters of reproductive rights are striving to make them more easily accessible. This Article advances the latter mission with a bold proposal: FDA should consider allowing abortion pills to be sold over the counter (OTC). Scholars recently have been urging the agency to lower barriers to abortion access by repealing the unnecessary special restrictions it imposes on mifepristone, one of two drugs in the medication abortion regimen. Even if FDA removed these restrictions, however, abortion pills would still be prescription medicines—a status that, in and of itself, limits many people’s access to drugs. This Article thus goes further than prior scholarship by advocating the repeal of the prescription requirement for abortion pills. More broadly, the Article argues that FDA should give greater weight than it currently does to the benefits of improved access when considering the switch of any drug to OTC status. By thus reimagining the switch process, FDA could give rise to a complete over-the-counter reproductive health armamentarium, including birth control pills, emergency contraceptives, and abortion medication. In a post-Dobbs America, this step would facilitate access to the products that people need more than ever to avoid unintended pregnancies and, if they choose, to end them when they occur.
Note:
Funding Information: I received no outside funding for this paper.
Conflict of Interests: In addition to being Professor of Law at American University Washington College of Law, I am a part-time Of Counsel at the law firm Covington & Burling LLP. In the latter capacity I am representing (pro bono) a group of food and drug law scholars who have filed an amicus brief in the U.S. District Court for the Northern District of Texas opposing the withdrawal of the abortion drug mifepristone from the market. I do not represent any manufacturer of mifepristone or misoprostol.
Keywords: Abortion, FDA, Mifepristone, Misoprostol, Medication Abortion
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