Protesting the Pill: In a Post-Roe World, Anti-Abortion Activists Take Aim at the Abortion Pill

By Gwendolyn Colando, JHBL Staff Member

In early January 2023, the FDA decided to allow pharmacies to dispense mifepristone, better known as the abortion pill, to those customers with a prescription.[i] As states continue to enact stifling abortion laws, the FDA’s decision comes as an important step towards making abortion more accessible.[ii] However, in response, anti-abortion activists have threatened increasingly desperate legal action against both pharmacies who opt-in to dispense the pill and the use of the pill generally.[iii] While pharmacies dispensing the abortion pill generally only improves access in states that haven’t enacted near total-abortion bans, it is still essential to uphold and protect abortion at all costs in a post-Roe world.

Medication abortion has become the most common abortion method in the United States, accounting for more than half of all abortions.[iv] Medication abortions can typically occur within the first 10 to 12 weeks of pregnancy and are reliably safe and low-cost compared to other options.[v] With the overturning of Roe v. Wade, states can now determine their own abortion laws and limit them as much or as little as they would like.[vi] As such, twelve states have enacted near-total abortion bans and another three have banned abortion within fifteen weeks.[vii] Given state’s urgency to ban the abortion pill, or abortion entirely, nineteen states now have some limits in place either prohibiting the use of the abortion pill or restricting it in some capacity.[viii]

In light of Roe, women have found new ways to access the abortion pill. [ix] Organizations like Aid Europe and pill suppliers from Mexico help women access the pill in states where it is either illegal or heavily regulated.[x] A study from the Society of Family Planning indicates that abortion decreased by 10,000 in the months post-Roe, suggesting women are using other means to terminate their pregnancy, like Aid Europe.[xi] While a decrease in abortion numbers would typically prove decreased access, this number simply suggests that women are obtaining abortions through other, non-traceable means. In an increasingly desperate move, conservative groups are challenging the abortion pill’s initial FDA approval from more than 23 years ago.[xii] Going even further, states are examining whether they can punish residents for getting the abortion pill from out of state.[xiii] Abortion opponents’ efforts and resources are far reaching, with some suggesting total-bans on websites that provide the abortion pill as well.[xiv] Last but not least, conservative Attorney Generals are threatening legal action against pharmacies who will stock and dispense the abortion pill after the FDA’s latest update.[xv]

Anti-abortion activists and politicians are willing to throw everything at the kitchen sink to keep abortion access as limited as possible. Once Roe was overturned, they focused their aim at the abortion pill and it has been a hotly contested topic ever since. While anti-abortion activists continue to attempt frivolous lawsuits and eye-catching tactics, it is more important than ever that access to the abortion pill is protected. Many of these challenges and lawsuits fly under the radar, so it is essential to be vigilant and focused on what is at stake. All it takes is one of these seemingly frivolous lawsuits to succeed to risk the loss of the abortion pill nationwide.

In Texas, Republicans are attempting to ban access to websites like Aid Access that provide the abortion pill to women everywhere.[xvi] While many consider these attempts to be far-fetched, overturning Roe itself seemed impossible just a few years ago.[xvii] In fact, some legal experts fear that one successful lawsuit like the one in Texas could lead to a nationwide ban on the abortion pill. [xviii] If one case like this one makes it to the Supreme Court, access to the abortion pill is just as at risk as Roe, which is why it is so essential to pay attention. Even though these cases often fly under the radar, it is more important than ever that courts hold these suits out to be frivolous to keep what little access women have to life-saving mediation.[xix] Meanwhile, a challenge to the abortion pill’s 23-year-old FDA approval is taking root. The suit was filed on behalf of the Alliance for Hippocratic Medicine, the American Association of Pro-Life Obstetricians and Gynecologists, the American College of Pediatricians, the Christian Medical & Dental Associations and four doctors suggesting that the abortion pill is dangerous to “girls and women.”[xx] Similar to the aforementioned case, this lawsuit has mainly flown under the radar as frivolous and far-fetched. The abortion pill has been long considered one of the safest ways to terminate a pregnancy, but that does not stop these lawsuits from proceeding.[xxi]

Most recently, anti-abortion groups have stirred up controversy by threatening legal action against pharmacies like CVS and Walgreens who may be willing to provide the abortion pill to patients through their pharmacies. Nineteen states have court battles ensuing over abortion pills, but the question will soon become whether they can enforce such bans in light of the FDA’s new policy.[xxii] In response to the FDA, twenty Attorneys General from more conservative states are warning CVS and Walgreens that further legal challenges will come if they attempt to implement the law as written.[xxiii] CVS and Walgreens have since put out statements indicating that they have no intent to prescribe the pill where it is currently illegal.[xxiv] Nevertheless, these threats persist to further the discourse about abortion and its ‘harms.’ These lawsuits and continued battles further the negative discourse about the abortion pill. As a result, there may be protests, backlash, and more difficultly accessing the pill than there should be.

Now that abortion is no longer accessible nationwide, it is essential to protect what remaining access women have to life-saving and essential medical treatments. While conservative anti-abortion activists will attempt a wide range of tactics to continue to thwart abortion access, their recent challenges may fly quietly under the radar. Many of their attempts are frivolous and on shaky legal ground but ongoing, nevertheless. While women’s constitutional rights continue to be under attack, the abortion pill remains a safe and effective way to terminate a pregnancy. As anti-abortion activists turn their attention to the abortion pill in a post-Roe world, vigilance, persistence, and commitment are essential.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.

Gwendolyn is a third-year evening student at Suffolk Law and Staff Member on the Health and Biomedical Law Journal. During the day, Gwendolyn works for a non-profit progressive fundraising organization and medical malpractice firm. She’s particularly interested in social justice and fighting for progressive causes.

[i] https://www.politico.com/news/2023/01/03/fda-access-abortion-pills-00076214

[ii] Id.

[iii] https://www.politico.com/news/2022/11/18/anti-abortion-groups-seek-to-overturn-fda-approval-of-abortion-pill-00069542, https://www.politico.com/news/2023/01/11/pharmacies-anti-abortion-pills-00077349

[iv] https://www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortions

[v] https://www.guttmacher.org/evidence-you-can-use/medication-abortion

[vi] https://reproductiverights.org/maps/abortion-laws-by-state/

[vii] https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html

[viii] https://www.kff.org/womens-health-policy/fact-sheet/the-availability-and-use-of-medication-abortion/

[ix] https://www.vox.com/policy-and-politics/2023/1/9/23540562/abortion-pills-medication-dobbs-roe-mifepristone

[x] https://www.vox.com/policy-and-politics/2023/1/9/23540562/abortion-pills-medication-dobbs-roe-mifepristone

[xi] https://www.societyfp.org/wp-content/uploads/2022/10/SFPWeCountReport_AprtoAug2022_ReleaseOct2022-1.pdf

[xii] https://news.bloomberglaw.com/health-law-and-business/abortion-pill-opponents-seize-new-chance-to-target-fda-approval