Right now, the anti-abortion movement is fighting medication abortion in the courts. But even if that effort fails, the movement has a backup plan to impede access to the two drugs used.
In the aftermath of the Supreme Court overturning Roe v. Wade, those drugs have been the focus of legislation and litigation because medications are now the most frequent mechanism by which people abort a pregnancy. Cutting off access to the procedure — a two-step regimen of mifepristone and misoprostol — is essential for anti-abortion activists if they are to reduce the number of abortions as much as possible.
Plan A for the movement is to simply reverse federal approval of abortion drugs and take them off pharmacy shelves nationwide. A federal district judge issued such a decision last week, but he was partly overruled Wednesday by an appeals court. The Fifth Circuit panel said that the drug in question, mifepristone, should remain available but with temporary restrictions, such as prohibiting mail orders. Those restrictions will remain in place until the appeals court makes a final ruling.
The backup plan, should that effort fail, is making it difficult to take mifepristone, in part by forcing doctors to share misleading medical information with patients who are considering an abortion and by putting other requirements on the prescription of those medications. Short of a national prohibition, it’s the next best thing for anti-abortion forces, with the clear intent of discouraging medication abortion as much as possible by making patients jump through hoops and exposing them to misinformation.
Kansas is one state to watch in the coming weeks. The Republican-controlled state legislature there approved a bill last week that would require medical facilities to post signs saying that an abortion started with a dose of mifepristone can be reversed before a dose of misoprostol is given, even though national physician groups have said that these claims “are not based on science and do not meet clinical standards.” Doctors would be required to tell their patients the same information directly.
Democratic Gov. Laura Kelly is expected to veto the measure. As the Associated Press noted, the legislation did not have the two-thirds majority necessary to override a veto on its initial passage. But, given there were some absences, it is possible Republicans will be able to put together enough votes to overrule Kelly and put these new requirements into place soon.
Kansas has been a major battleground in the post-Roe fight over abortion rights. The state Supreme Court and its voters have both affirmed the right to have an abortion in the months since the US Supreme Court’s decision. But Republicans continue to push for restrictions in spite of the political backlash that culminated with Kelly’s reelection last November.
“They need to be knowledgeable about what can happen,” Kansas state Rep. Susan Humphries, a Republican from Wichita, said during a debate on the bill, per the AP.
The problem, according to medical groups such as the American College of Obstetricians and Gynecologists, is that the claims legislators are asking doctors to make are not supported by good science.
“Claims regarding abortion ‘reversal’ treatment are not based on science and do not meet clinical standards,” ACOG says. “Politicians should never mandate treatments or require that physicians tell patients inaccurate information. This is an interference in the patient-clinical relationship and contradicts a fundamental principle of medical ethics.”
The group argues that the evidence offered by supporters of these reversal claims does not stand up to scrutiny. A frequently cited 2012 case study involved just six pregnant people and was not overseen by an institutional review board, as is standard for academic research. Patients were given progesterone, the hormone essential to a healthy pregnancy, which mifepristone blocks.
That raises “serious questions regarding the ethics and scientific validity of the results,” ACOG said, noting that case studies without a control group “are among the weakest forms of medical evidence.”
Follow-up case studies had the same methodological problems. The organization also pointed to a 2020 study that did receive IRB oversight but was eventually stopped over concerns about the safety risks for the patients involved.
Nevertheless, this effort to require doctors to share such claims with patients is not unique to Kansas. Eight states — Arkansas, Idaho, Kentucky, Louisiana, Nebraska, South Dakota, Utah, and West Virginia — already have laws on the books requiring doctors to share misleading information about reversing medication abortions, according to the pro-abortion rights Guttmacher Institute.
The first version of this policy was passed in Utah in 2017. It was a slow trickle after that until, as momentum for overturning Roe grew given the conservative takeover of the US Supreme Court, five more bills were approved in 2021 and 2022.
In addition to Kansas, similar legislation has been introduced this year in Massachusetts and Texas, though neither has advanced as far as the Kansas bill has (and it is likely a nonstarter in Democrat-controlled Massachusetts). National Right to Life and other anti-abortion groups have made clear their support for what they call the “abortion pill reversal process” and, given the legislative activity already this year, it seems likely more bills may advance in the months and years to come.
For the anti-abortion movement, these mandates are not as sweeping a victory as banning mifepristone outright by overturning its approval. But they are, in their way, the next generation of ultrasound bills and other policies that were meant to, in effect, force doctors, even against their will, to give patients either manipulative or outright misleading information that might lead them to second-guess their decision to seek an abortion. Research indicates those requirements are associated with a small but meaningful increase in the number of pregnancies that patients ultimately decide to continue rather than abort.
Other measures, such as the requirements in place in more than 20 states that abortion medications be delivered and/or administered in person, thereby preventing mail orders, are meant to have the same chilling effect.
The fear is that these new requirements put the state in the middle of private discussions between a doctor and their patients. It could ultimately lead to someone making a choice, in a moment of vulnerability and being presented with bad information, that they otherwise would not. That is reflected in the medical community’s concerns about the claims health care providers are being asked to make and the ways in which they interfere with what is supposed to be a protected interaction with their patient.
For the anti-abortion movement, short of an outright end to abortion, their stated goal is to limit abortions as much as possible. Plan A will be difficult. That’s why they have a backup plan.
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