Red states advance bans on abortion medication

Legislators in at least five states are considering measures that would ban or restrict access to abortion-inducing drugs, a top priority of anti-abortion groups in the aftermath of the U.S. Supreme Court ruling last year that overturned the constitutional right to an abortion. 

Those measures – including proposals in Wyoming, Iowa and Missouri that would criminalize the prescription, distribution or even manufacture of certain drugs if they were used to induce an abortion – are part of a multi-pronged push from conservative officials and advocacy groups to plug what they see as a gaping hole in their efforts to enforce abortion restrictions. 

Medication accounts for more than half of the abortions performed in the United States.

“I don’t know of a single pro-life organization in the state that does not support this,” Wyoming Sen. Tim Salazar (R) said on the Senate floor in January before a vote advancing his bill.

Efforts to restrict abortion-inducing medication have zeroed in on two drugs –   mifepristone and misoprostol – which the Federal Drug Administration says can be safely used together to terminate a pregnancy up to 10 weeks. 

For years, mifepristone was only available through in-person visits to certified healthcare providers. But those requirements have been eased recently. 

In January, the FDA permanently removed the in-person dispensing requirements, allowing pharmacies to become certified to dispense them through the mail. 

Abortion opponents say that the new guidelines make it too easy for the drugs to be used to subvert local abortion regulations, and that in-person consultations should be required to ensure that the drugs are taken safely. 

“A doctor really has the responsibility to make sure that that patient knows exactly what they are doing, what are the risks, make sure there aren’t any contraindications before taking it and then have a follow-up visit with that patient to make sure that they are okay,” said West Virginia Sen. Patricia Rucker (R). 

Rucker sponsored a bill that would impose fines of up to $1,000 or imprisonment to medical providers who provide chemical abortions without an in-person physical exam and a follow-up visit. The bill also would require providers to provide a catch kit and a medical waste bag. 

West Virginia passed a near-total abortion ban in September. 

Abortion rights advocates and health care providers say that abortion opponents exaggerate the risks of medication that the FDA has considered safe for decades. They point out that medications used in abortions are also part of standard women’s health care and argue that any attempt to restrict access to them – even if lawmakers try to carve out exceptions – could make it harder to offer routine care for miscarriages, hemorrhages and other conditions.  

“We use those medications for other reasons and it will drastically affect the way we take care of our patients,” said  Dr. Rene Hinkle, a Cheyenne OB-GYN, who was one of numerous health care providers who testified during an hour-and-a-half long hearing on the Wyoming bill before the Senate Labor, Health and Social Services Committee at the end of January. “Although the bill says that we can use it for miscarriages, we all know that pharmacists and hospitals and other physicians are not going to want to give it to us because they are not going [to want] to be prosecuted.”

Wyoming is the first state to advance an abortion medication ban this year, as legislatures across the country meet for their first session since the Dobbs ruling was released last summer. 

The bill there references mifepristone and misoprostol and their brand names and generic forms, and states that it would not apply to the use of the drugs “before pregnancy” or in the case of rape, incest, a “natural miscarriage” or to protect the life or health of the mother.   

Physicians or others who violate the ban would face a misdemeanor charge and up to a $9,000 fine and six months and jail.

It passed the Senate – with four Republicans joining the chamber’s two Democrats in opposition – and was referred to the state House of Representatives on January 27.

The Republicans who voted against it declined or did not respond to requests for comment. But several said on the Senate floor that they were concerned about unintended consequences. 

“It’s been represented that these drugs are dangerous and harmful, and they’re very safe – extremely safe,” Sen. Cale Case (R) said during floor debate. “And when people represent that something is dangerous when it’s not, and say it over and over again … I don’t think that’s right.”

Democrats in the Senate and the House said they were skeptical that the bill will pass the House, where previous versions have languished. 

“One of the key points here is that this is going beyond the direct debate of pro-choice anti-choice, and really tries to get into legislating appropriate healthcare practices,” said Sen. Chris Ruthfuss (D). “I think that’s why this is even creeping out candidates that traditionally count themselves as pro-Life.”

A Wyoming law banning all abortions except in cases of rape or incest or to protect the life of the mother has been blocked by the state court over questions of whether it violates provisions in the state constitution, including a 2012 amendment guaranteeing adults the right to make their own health care decisions. A stricter ban, which would not include exceptions, passed the state House this week. 

Only two states – Texas and Indiana – have abortion bans specifically mentioning abortion-inducing medication that have not been blocked by courts.

Twenty-nine states require physicians to administer abortion-inducing medication. Eighteen states require the clinician providing a medication abortion to be physically present when the medication is administered, effectively prohibiting the use of telemedicine to prescribe medication for abortion, according to the Guttmacher Institute, a nonprofit research organization that advocates for abortion rights. 

Those laws have raised questions about potential conflicts with federal regulations. 

More than 20 Republican attorneys general signed on to a letter this month threatening the CVS and Walgreens – the country’s biggest pharmacy retailers – with legal action if they fill prescriptions for abortion pills through the mail. 

Texas Attorney General Ken Paxton (R) filed a lawsuit Tuesday challenging the Biden administration’s July guidance that directed pharmacies to fill prescriptions to abortion-inducing medications. A federal judge in Texas is expected to issue a ruling any day that could block the use of mifepristone across the country.