Red states have little power to curb the use of abortive drugs

Now that the Supreme Court has returned control of abortion to the states, and therefore to voters, the next political battle will be over access to abortion drugs, which today account for 54% of all terminated pregnancies in the United States. .

According to the Wall Street Journal, two drugs — mifepristone and misoprostol – are usually used in a chemical abortion regimen. A single dose of mifepristone (brand name: Mifeprex) is followed by a regimen of misoprostol (brand name: Cytotec), depending on the number of weeks of pregnancy. Reproductive health experts argue that the drugs are safe and have efficiency rate of 95 percent if given at 10 weeks gestation or earlier.

Costs for a chemical abortion vary by state, but range from $350 for a remote telehealth consultation to $750 for an in-person consultation, the Journal said. Most health insurance plans pay for these drugs, and Medicaid would if the abortion was necessary for rape, incest, or to protect the life of the mother.

The United States Food and Drug Administration approved Mifeprex in 2000 and its use has steadily increased in relation to surgical abortions. According to data from the pro-abortion Alan Guttmacher Institute, chemical abortions now account for more than half of all abortions, up from just 36% in 2017. The drug is only approved for use up to 10 weeks, but because the FDA doesn’t. regulate medical practice, it is conceivable that doctors assume the risk and prescribe it beyond 10 weeks.

On December 16, 2021, the FDA removed the requirement for in-person distribution of mifepristone and expanded distribution to certified pharmacies and certified clinicians. This change allows for the delivery of abortion drugs by mail in states that do not restrict telehealth for chemical abortions. Despite the change to the in-person requirement, prescribers must still be certified by manufacturers.

In response to the Dobbs decision, allowing states to regulate abortion, Republican Governor of Tennessee Bill Lee signed a bill making mail-order abortion pills illegal in the state, and the Governor of Louisiana signed into law a bill prohibiting out-of-state vendors from sending abortion pills, punishable up to 10 years in prison and a $75,000 fine, effective August 1. Republican South Dakota Governor Kristi Noem, a potential GOP candidate for president in 2024, signed a bill restricting chemical abortions via telemedicine.

According to the Guttmacher Institute, at least “19 states require the clinician providing a medical abortion to be physically present when the medication is administered, thus prohibiting the use of telemedicine to prescribe medication for abortion.” Seven of these requirements were adopted last yearas well as six new laws prohibiting the sending of abortion pills, according to the New York Times.

Can states override the FDA?

However, two legal constraints on states will likely make it difficult to reduce the prescription of abortive drugs, including mail-order bans.

The first is the Commerce Clause of the Constitution. Article 1, Section 8, Clause 3 gives Congress power “to regulate commerce with foreign nations, and between the several States, and with Indian tribes.” Over the past 80 years, the Supreme Court has dramatically curtailed the ability of states to regulate interstate commerce.

The second is FDA preemption. Because Congress has designated the FDA with the power to review and approve applications for drugs, devices, and medical products, states cannot impose their own restrictions.

U.S. Attorney General Merrick Garland said in a statement the day the U.S. Supreme Court struck down Roe vs. Wadethat “states cannot ban mifepristone because of a disagreement with the The FDA’s expert judgment on its safety and effectiveness. He has vowed to go to court to protect chemical abortions, and presumably the pharmaceutical industry will too.

States have failed to ban or restrict other FDA-approved drugs, including California last year, which attempted to ban the practice of generic drugmakers accept payments to delay the marketing of prescription drugs at lower costand in Massachusetts in 2014, when the state attempted to ban an abuse-resistant opioid drug.

As a result, efforts by a number of states to limit abortion following the reversal of Roe vs. Wade might not make a significant difference.

For example, newly elected Virginia Governor Glenn Youngkin, a Republican, is calling for legislation banning abortion after 15 weeks of pregnancy, with exceptions for rape, incest, and to protect the life of the mother. However, only 3% of abortions in Virginia in 2019 (latest available data) occurred after 15 weeks, or less than 400. Without passage of chemical abortion laws, most abortions in Virginia will proceed as habit.

Much has been made of 13 states having “trigger laws”; essentially laws that banned or restricted abortion before Roe that stayed on the books, and later became law when Dobbs has been decided. Of those states, only Missouri would see the majority of abortions become illegal, according to CDC data.

Ohio and Texas have restrictions on abortion after six weeks of pregnancy. However, CDC data indicates that if abortions before 10 weeks are induced by Mifeprex/Misoprostol, approximately 62% would proceed in Ohio and 80% in Texas due to drug availability.

Additionally, 26 states are unlikely to toughen abortion laws, so surgical abortions will remain available to women who wish to travel to abort unborn children.

The left is hysterical about Dobbs decision, hoping it will boost Democratic turnout for candidates facing certain defeat this fall due to the eroding economy. But a closer look at the laws that red states actually pass shows that many abortions will continue, as many states go to great lengths to accept the exemptions.

If pro-abortion extremists hadn’t challenged Mississippi’s 15-week ban, Roe vs. Wade could be intact today.


Ken Reid covered the FDA from 1986 to 2021, primarily as editor and publisher of Washington Information Source Co. – www.FDAINFO.com – which ceased publication in December.

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