Pay attention: The abortion pill is the next target for a national ban

On Election Day, voters in four states — Pennsylvania, Ohio, Kentucky and Virginia — sent a resounding message to anti-abortion politicians and judges: We will keep abortion legal in our states. Voters made clear to the Republican Party that abortion wins elections and that the right’s war on reproductive freedom is backfiring. 

But pay attention.  

Even with these victories in individual states, we are still left with a pre-Roe patchwork of access to safe abortion: In the wake of the Dobbs v. Jackson decision overturning Roe v. Wade, 13 states quickly moved to ban abortion access entirely, with many more severely restricting access. In the states where abortion is banned, access has been decimated. 

In the face of onerous state bans and restrictions, women are traveling to other states — with significant increases in costs, travel time and time away from work — to get safe abortion care. We are seeing case after case where pregnant women are denied needed abortion care even when their health and lives are at risk. Shockingly, some states are now threatening to prosecute anyone who facilitates out-of-state abortion access in a state where abortion is legal.

Pay attention because it’s about to get worse.  

In the face of these state-by-state victories, the right is unleashing a different strategy: to end, nationwide, access to medical abortion — the most common abortion method in the U.S. 

Two cases that could decide this very issue are pending at the Supreme Court. They center on the Food and Drug Administration (FDA) approved drug mifepristone, one of the pills used in a two-drug regimen (mifepristone and misoprostol) to cause medical (nonsurgical) abortion early in pregnancy.  

The plaintiff, the Alliance for Hippocratic Medicine, is a coalition of doctors who oppose abortion and advocate for laws preventing other medical professionals across the nation from providing it. Its latest effort strikes at abortion rights even in states where voters have spoken and abortion access is protected. 

Earlier this month, Missouri, Kansas and Idaho linked arms with the Alliance for Hippocratic Medicine and asked the courts to let them join as parties to their case.   

Collectively they argue that mifepristone should be removed from the market entirely or severely restricted on the theory that the FDA never should have approved it in the first place; an approval that happened more than two decades ago.  

Two federal courts have agreed with the Alliance for Hippocratic Medicine, forcing the FDA to appeal to the Supreme Court. And now we wait.  

It is, in many ways, a game of horrifying déjà vu. When the Supreme Court overturned Roe v. Wade, the court’s earlier decision finding a constitutional right to abortion, the first question pundits asked me and other reproductive-rights scholars was “Are you surprised?” Each time, I said “No. We told you this was coming, we told you there was a deliberate, decades-long campaign to overturn Roe, and we told you to pay attention.” 

Pay attention now.  

Make no mistake: The mifepristone fight was launched precisely because medical abortion is the most common and accessible abortion method in the U.S.  

It was launched precisely because removing mifepristone from the market would apply nationwide — even if individual states protect abortion access.  

The case was brought precisely because women are still finding ways to get legal abortions — even if it means traveling to other states. Indeed, recent studies show that states with abortion protective policies — particularly those that border states with abortion bans — are seeing enormous upticks in people seeking abortions in their states.   

It was brought precisely because medical abortion allows for wider and out-of-state access to safe abortion. For example, medical professionals can, in some states, prescribe mifepristone via telemedicine and deliver it by mail, eliminating unnecessary in-person appointments and costly patient travel.    

And it was brought blatantly in spite of mifepristone’s decades-long track record of safety and efficacy — it’s safer, in fact, than Tylenol and insulin.  

This attack is no surprise. The Alliance for Hippocratic Medicine is represented by the Alliance Defending Freedom — the legal organization that drafted the model legislation that would become the Mississippi 15-week abortion ban and defended it at the Supreme Court in the case that ultimately overturned Roe. And as they celebrated Roe’s reversal, they made it crystal clear that “the battle continues.”   

Pay attention.  

Their next battle is the mifepristone case, and it is a fight with enormous implications. If FDA approval is rescinded and mifepristone is removed from the market or more severely restricted, medical abortion access could be decimated nationwide — even in states that protect abortion access. The hard-fought state victories are gutted if the medication used for the most common abortion method isn’t available. 

There are also hugely significant questions about judicial overreach far beyond this medical treatment. If judges without scientific or medical training can second guess the expert decisions of the FDA, which are based on extensive clinical trial data, no drug is safe from these types of challenges. 

Indeed, the pharmaceutical industry collectively lambasted the 5th Circuit decision, stating: “If courts can overturn drug approvals without regard for science or evidence, or for the complexity required to fully vet the safety and efficacy of new drugs, any medicine is at risk for the same outcome as mifepristone.”   

Voters may have sent a signal to the ultra-right politicians — but they do not seem to care. They are playing the long game, and it is a game to end access to safe abortion nationwide.   

Pay attention. 

Jessica Waters is an assistant professor in the Department of Justice, Law and Criminology, a faculty member in the School of Public Affairs and director of the School of Public Affairs Leadership Program at American University, and an adjunct faculty member at the Washington College of Law. Her research focuses primarily on reproductive rights law.