Will abortion pills blunt the impact of overturning Roe v. Wade?

·4 min read
The Supreme Court.
The Supreme Court. Illustrated | Getty Images

The Supreme Court's Dobbs v. Jackson Women's Health Organization ruling on Friday overturned the 1973 Roe v. Wade decision that established a constitutional right to abortion. The new decision put the matter into the hands of the states, half of which are expected to ban or severely restrict abortion access. In the 72 hours after the decision was released on Friday, internet searches for prescription abortion medications jumped 162 percent compared to the three days before the ruling, hitting 350,000, a record for a three-day period, according to a study in the journal JAMA Internal Medicine. CVS, Rite Aid, and Amazon had to temporarily cap purchases of the so-called morning-after pill Plan B, an emergency contraceptive available over the counter to prevent a pregnancy after unprotected sex.

Will abortion pills and emergency contraceptives blunt the impact of the Dobbs decision?

Dobbs might wind up increasing access to abortion

"Ironically, in their effort to eliminate a woman's constitutional right to abortion, the Pro-Life Justices decision ultimately may backfire," says Aaron Harber in The Colorado Springs Gazette. Some states are rushing to impose bans, but others are trying to find ways to expand access and "guarantee a right to abortion, contraception, and other medical options as a counter to the Supremes' edict." And the federal government is exploring making medication abortions — which in 2020 accounted for more than half of the 930,160 legal abortions in the U.S. in a Guttmacher Institute study — accessible nationwide via tele-health or in-person visits and via mail, so that "'at-home' abortions will become even more available." And booming interest in the morning-after pill will further help women avoid unwanted pregnancies.

Pills definitely are the next battleground

Attorney General Merrick Garland is making abortion pills a focus of the federal government's response to the overturning of Roe, says Elizabeth Nolan Brown at Reason. He noted that the Food and Drug Administration has approved the use of Mifepristone, part of a two-drug regimen used in medication abortions up to 10 weeks into a pregnancy. Garland stated flatly: "States may not ban Mifepristone based on disagreement with the FDA's expert judgment about its safety and efficacy." It's "unambiguously a good thing" that the attorney general "recognizes that people have some right to control their own bodies, but whether FDA authority can or should be used to derail state abortion bans "is another story." As David S. Cohen, Greer Donley, and Rachel Rebouché put it in a forthcoming article in the Columbia Law Review, how governments handle the flow of abortion pills across state lines will be one of many battles in the upcoming "interjurisdictional abortion wars."

Courts might soon decide if the FDA can guarantee access to abortion pills

One of the big questions of the post-Roe era, says Rachel M. Cohen at Vox, is, "Do states have the legal authority to outright ban drugs that have been approved by the U.S. Food and Drug Administration?" There's a federal lawsuit underway in Mississippi that might provide the answer. In that case, generic-abortion-pill manufacturer GenBioPro is fighting to "overturn state restrictions that impede access to the abortion pill mifepristone." Mississippi has filed to get the case dismissed, and both sides this week had to submit briefs on how the Dobbs decision and Mississippi's "trigger law" banning abortions once Roe was overturned affect the status of abortion pills in the state. "A ruling in favor of Mississippi could have implications for other jurisdictions seeking to ban abortion pills in a post-Roe landscape."

The legal fights might never end

"These pills are among the reasons that we are not going back to the era of coat hangers," says Jia Tolentino in The New Yorker. "They can be prescribed via telemedicine and delivered via mail." They're 95 percent to 98 percent effective up to 11 weeks into pregnancy, which would cover nearly 90 percent of all abortions in the U.S. "In 19 states, doctors are prohibited from providing abortions via telemedicine, but women can seek help from clinicians in other states and abroad." Still, in states rushing to ban abortions, using these pills will be illegal, and "any pregnancy loss past an early cutoff can now potentially be investigated as a crime," which will subject women to a whole new kind of trauma. "Even if prosecutors fail to prove that an abortion took place, those who are investigated will be punished by the process, liable for whatever might be found."

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