Skirmishes Over Medication Abortion Renews Debate on State vs. Federal Powers

As the Supreme Court appears poised to overturn Roe v. Wade, the landmark decision that guarantees the constitutional right to an abortion, reproductive rights advocates are considering new ways to protect nationwide access to the procedure. One strategy involves preserving the availability of the medication used to initiate an abortion in states poised to restrict access otherwise. Such a move would require that federal law take precedence over a state’s — a concept known as preemption.

The Nature of Medication Abortion

Medication abortion is an option during the first 10 weeks of pregnancy and involves taking two pills: mifepristone, a drug that blocks hormones necessary for the pregnancy, followed by misoprostol, which helps empty the uterus. In 2020, medication abortions became the most common method, accounting for more than half of all U.S. abortions. Medication management of pregnancy loss and abortion has been around for decades and is undergoing constant research and development. In many places around the world, it is the fastest growing and most prevalent form of abortion care and considered widely to be safe and effective.

Medication Protocols

The following medications are typically used in the first trimester of pregnancy:

• Mifepristone: Otherwise known as RU-486 or “the Abortion Pill”, it is the first step in many medication protocols: it ENDS the pregnancy by blocking progesterone in the body.
• Misoprostol: A prostaglandin analogue that binds to myometrial cells, causing contractions of smooth muscle tissue to expel the pregnancy.

Federal Authority vs. State Bans

Some legal and drug regulatory experts argue that because the FDA is the federal agency responsible for protecting public health by ensuring the safety, efficacy, and security of human drugs, states wouldn’t have the power to overrule its stamp of approval and outlaw the abortion pill. In other words, “FDA policy governing mifepristone could preempt states’ ban of medication abortion,” said Rachel Rebouché, interim dean of Temple University’s Beasley School of Law. However, thirteen states have restrictive “trigger laws” on the books that would kick in if Roe is undone. These vary widely but would effectively ban abortions overall, with few exceptions.

The Rise of Telemedicine and Shield Laws

The telemedicine practice of consulting with remote patients and prescribing them medication abortion via the mail has grown in recent years — and is now playing a critical role in keeping abortion somewhat accessible in states with strict abortion laws. But this practice faces intense legal scrutiny. On Jan. 31, Carpenter became the first U.S. doctor criminally charged for providing abortion pills across state lines. In response to such threats, eight states — New York, Maine, California, Colorado, Massachusetts, Rhode Island, Vermont, and Washington — have passed laws since 2022 to protect doctors who mail abortion pills out of state, and thereby block or “shield” them from extradition in such cases.

Telehealth Protection States

• New York
• Maine
• California
• Colorado
• Massachusetts
• Rhode Island
• Vermont
• Washington