Looming abortion pill rules could recast reproductive rights battle

The stakes around the FDA’s decision have grown as justices consider Mississippi’s 15-week abortion ban and revisit the basic framework of Roe v. Wade, including whether states may ban abortion prior to the point of fetal viability, which occurs around 24 weeks of pregnancy.

While making the pills widely available could give patients a workaround should the high court uphold the Mississippi law, it wouldn’t guarantee access to at-home abortions to everyone who wants it. First, the pills can only be used in the U.S. during the first 10 weeks of a pregnancy — meaning that by the time many people discover they are pregnant and figure out how to obtain them, it could already be too late.

Second, a wave of red states has moved over the last few years to restrict access to the pills, action that picked up considerably earlier this year when the FDA signaled it might loosen the federal guidelines. Texas became the latest, implementing a ban on mail delivery and online prescribing of abortion pills just days before the Supreme Court left the state’s more sweeping ban on all forms of abortion after six weeks of pregnancy in place. The anti-abortion movement is now pouring energy and resources into pushing state legislatures and Congress to outlaw or restrict the pills, calling it one of their top priorities.

“It’s clear that reckless change is in the works,” said Kristan Hawkins, president of the group Students for Life of America, about the impending FDA decision. “We need to bring an end to chemical abortion.” Her group is currently lobbying for limits on the pills and other abortion methods in more than 30 states.

It’s unclear whether such state bans unconstitutionally preempt federal law by denying people access to medication the FDA deems safe and effective, said Patti Zettler, a professor specializing in FDA law at Ohio State University. What’s certain is years of legal battles to come. And abortion rights groups say even if the bans are eventually struck down, they are already deterring people from accessing the pills.

As federal courts become increasingly hostile to abortion rights and Congress lacks the votes to either tighten restrictions on the pills or make them more easily accessible, the hopes of the abortion rights movement have turned to the executive branch. But underground providers and activist groups aren’t waiting for the FDA. They are moving on their own to dispense pills, and making plans for a post-Roe America.

“We’re set up to do whatever’s necessary,” said Rebecca Gomperts, the founder of Aid Access, an international organization that prescribes and mails mifepristone to people in all 50 states.

It’s a fight that has been simmering for decades, ever since the FDA first approved mifepristone during the Clinton administration, along with a requirement that the pills be physically handed out by a doctor.

Now, groups such as the American College of Obstetricians and Gynecologists are pushing the FDA to allow online prescribing and mail delivery, citing studies from around the world showing the pills are equally safe no matter how they get to the patient.

That fight is taking on more…