The Supreme Court is set to rule soon on how the abortion drug mifepristone can be used and prescribed, but conservative states — most recently Arkansas and Louisiana — haven’t waited to take their own steps to attempt to undercut access to the medication.
States have been able to ban or restrict abortion, including via medication, since the Supreme Court ended the federal right to abortion in June 2022. Yet the number of abortions has risen since Roe v. Wade was overturned — a development health researchers attribute in part to a growing share of pregnant patients seeking medication abortions through telemedicine, including those in states with bans.
More than 60 percent of U.S. abortions are now done with medication, which poses an existential threat to the anti-abortion movement’s goals, since it can be transported across state lines. The movement has responded by filing lawsuits challenging how mifepristone can be used and prescribed, including in the case Food and Drug Administration v. Alliance for Hippocratic Medicine, which the Supreme Court is expected to decide next month .
Republican lawmakers in GOP-led states have introduced — and in several cases enacted — legislation with the same intent. Their state attorneys general are also paying close attention to how mifepristone is prescribed and obtained and are searching for ways to discourage it.
Abortion rights advocates and Democrats, meanwhile, are trying to preserve mifepristone access by fending off lawsuits, bringing their own, and enacting so-called shield laws meant to protect medical providers who prescribe and mail abortion pills. These laws now exist in liberal-leaning California, Colorado, Maine, Massachusetts, New York, Vermont and Washington. They only shield prescribers while they are working in the states that have protections, though, and not in the states where abortion is banned.
Last week, Louisiana became the latest state to attack medication abortion when its Republican-led legislature and governor enacted a law that reclassifies both mifepristone and misoprostol, which are commonly used in combination, as “controlled dangerous substance[s],” a designation typically reserved for addictive drugs. The law also prohibits possession of the medications without a prescription and has related penalties that include fines and jail time.
“Requiring an abortion-inducing drug to be obtained with a prescription and criminalizing the use of an abortion drug on an unsuspecting mother is nothing short of common-sense,” Louisiana Gov. Jeff Landry said in a statement shortly after signing the law.
Louisiana state Sen. Thomas Pressly, who authored the legislation, said it was inspired by his sister, who was given mifepristone without her knowledge by her husband. His sister went on to have the baby, who has developmental delays; her estranged husband pleaded guilty and was sentenced to 180 days in jail. Pressly’s office did not return The 19th’s request for comment, but he told Washington Watc h after Landry’s signing that it was a “personal issue” for him, and he hoped it would protect other women.
The law’s enactment came on the heels of a cease-and-desist letter sent by the Arkansas attorney general to Aid Access, one of the largest providers of telemedicine abortion . Though the organization is headquartered in the Netherlands, it leverages a network of American physicians in states with shield laws to provide abortion pills to patients around the country.
Efforts by GOP lawmakers in other states have failed or been blocked by courts. In Indiana, a bill that would have prohibited prescribing or possessing abortion-inducing drugs and blocked nonprofit organizations from offering financial assistance for medication abortion died before the legislative session ended. In Wyoming, a judge temporarily put on hold a first-of-its-kind law that would specifically ban medication abortions.
These state-level efforts followed the Supreme Court case brought by the Alliance for Hippocratic Medicine challenging the FDA’s 2000 approval of mifepristone, though the justices seemed skeptical during oral arguments this spring that the doctors had standing. Abortion opponents “listened to the Supreme Court oral arguments and know they are likely going to lose,” Reproductive Freedom for All President Mini Timmaraju told The 19th.
“So it’s not surprising that this happened in Louisiana. I would take a look at every single other Republican attorney general who signed onto the amicus brief” in the doctors’ case when it was before the U.S. Court of Appeals for the 5th Circuit to see where mifepristone legislation might crop up next, she added.
Louisiana is among the 19 states whose attorneys general filed a friend-of-the-court brief supporting the anti-abortion doctors when the case was at the 5th Circuit. That court determined that too much time had passed to undo the FDA’s underlying approval, but questioned later moves to make mifepristone more readily available, including steps taken by the Biden administration that paved the way for mifepristone prescriptions via telemedicine. It is these later efforts to increase access the Supreme Court is considering.
The anti-abortion movement is also trying to block access to mifepristone by reviving enforcement of an 1873 law known as the Comstock Act , which prohibits “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion” from being mailed or sent via a private company such as UPS or FedEx.
The partisan divide over mifepristone has become evident on the presidential campaign trail. President Joe Biden has said that he strongly supports continued access to abortion medication and that his administration will do what it can to protect it, including by defending it before the Supreme Court — and it has. Republican former President Donald Trump, who cemented the conservative Supreme Court majority that overturned Roe, has thus far declined to clarify his preferred approach to mifepristone — even when asked.
Given that a majority of Americans want legal access to abortion, and more than 6 in 10 say they believe that mifepristone should be available, according to Gallup polling, Republicans have to some extent painted themselves into a political corner on issues of reproductive rights.
While Trump has remained mum on mifepristone, some of his former advisers have endorsed enforcing the Comstock Act. The influential Heritage Foundation has also crafted a blueprint for Trump’s potential second term called Project 2025. In it, they call for Trump’s FDA to “reverse its approval of chemical abortion drugs.”
It is an open question whether these efforts would succeed in stopping people from acquiring and using abortion pills. But state-based, anti-abortion lawmakers’ recent moves to cut off access to mifepristone could amplify legal confusion for patients attempting to circumvent their states’ abortion bans, as well as for health care providers.
Louisiana’s mifepristone law, like state abortion bans, does not criminalize the pregnant person, but targets providers and other people who help pregnant people get abortion medication. That means that if someone possesses the pills, but not for their own use, they could face up to five years in prison. Louisiana’s overall abortion ban has exceptions to save a pregnant person’s life, to prevent “serious risk” to the gestational parent’s health or when a fetus has a life-ending health condition.
Some abortion-rights advocates and physicians in Louisiana fear it could deter patients from using telemedicine to access care from out-of-state providers, or discourage doctors and pharmacists in the state from making abortion pills available for people experiencing miscarriages, which are treated through the same medical regimen.
“It’s going to have a dramatic chilling effect,” said Michelle Erenberg, executive director of Lift Louisiana, a reproductive rights organization that has supported research probing the state abortion ban’s impact.
The ubiquity of telemedicine poses a challenge for the anti-abortion movement, given that 1 in 5 of abortions in the United States are done by medication prescribed without an in-person office visit, according to the Society for Family Planning, though it’s not clear how many of those are for patients living in states with abortion bans.
Greer Donley, a law professor at the University of Pittsburgh who studies medication abortion laws, said that it is difficult to see how Arkansas will be able to back up its threats to investigate or bring a case against Aid Access. For one thing, she said, there isn’t an obvious jurisdiction in which the state can file suit, especially if nobody from the organization has set foot in Arkansas. Similar jurisdictional questions would be raised by, say, a Massachusetts doctor using telemedicine to prescribe abortion pills that a patient can fill via an online pharmacy and have sent into a state with a mifepristone ban.
“Maybe they’re just throwing everything at the wall that they can think of about how to go after pills without being thoughtful about the impact,” Donley said of attempts to restrict medication abortion.
“Clearly this is aimed at trying to chill shield provision [of medication],” she added, “but it does not seem to be a super strong legal strategy.”
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