Roe v. Wade and its federally guaranteed right to abortion may be overturned, but efforts by states to legislate use of prescribed drugs that terminate pregnancy could prove difficult, experts say.
According to Axios, a national news website, the U.S. Supreme Court ruling “immediately pivots the fight over abortion access to state efforts to restrict medication abortions or so-called ‘abortion pills.’” The pills used to terminate a pregnancy — mifepristone and misoprostol — are FDA-approved for use in the first 10 weeks of pregnancy and are frequently prescribed online and mailed to patients, Axios states.
Medication abortion accounted for 54% of all U.S. abortions in 2020, up from 39% in 2017, according to the Guttmacher Institute, which supports abortion rights.
In Indiana, the use of telemedicine to administer medication abortion is prohibited and medication abortion cannot be administered after 10 weeks of pregnancy, Guttmacher reports.
Complicating the matter is that the FDA in December lifted long-standing restrictions, making the pills more widely available, via telemedicine appointments and online prescribing that enables delivery to someone’s door, writes Axios.
Medication abortion is likely to be one of the areas addressed when the Indiana Legislature meets in special session this month to consider tougher anti-abortion laws.
Rep. Bruce Borders, R-Jasonville, says, “It’s an issue I know we will be bringing up ... We’ll be looking into some other states and I’ll be reaching out to other states and looking into their laws as well.”
He’s aware that more than 50% of abortions are done through use of medication. “I do have concerns about it. The bottom line is, it is still taking the life of a child. I’m very concerned about it,” he said.
Borders said he doesn’t yet have specifics in terms of how the legislature might address the issue. “It’s a new issue in a sense for all of us,” he said. State Rep. Alan Morrison, R-Brazil, said House Republicans will meet next week “and we’re going to take a handful of weeks to kind of synthesize everything we talk about and where we go from there. I am going to hold off any sort of thoughts on where I think legislation will go or where it will end.”
He added, “Quite honestly, nobody knows. Anyone who says they know where we will end up is misinformed or stretching the truth. It will be a long discussion and we’ll find out where we end up.”
State Rep. Tonya Pfaff, D-Terre Haute, suggests that Indiana government “should follow the legal guidance from the United States attorney general.”
Efforts to reach State. Sen. Jon Ford, R-Terre Haute, and State Rep. Bob Heaton, R-Terre Haute, were unsuccessful.
U.S. Attorney General Merrick Garland issued a statement June 24 that included the following: “We stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care. In particular, the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” Garland also stated that the Constitution continues to restrict states’ authority to ban reproductive services provided outside their borders.
“Under bedrock constitutional principles, women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal. Moreover, under fundamental First Amendment principles, individuals must remain free to inform and counsel each other about the reproductive care that is available in other states,” Garland stated. He stated that the Justice Department “will work tirelessly to protect and advance reproductive freedom.” Medication abortion is not the same as the morning after pill, or Plan B, which is to be taken as soon as possible within the first 72 hours after unprotected sex to prevent pregnancy.
Plan B is an emergency contraception pill that’s available over-the-counter.
Experts weigh in
Medication abortion typically uses a combination of two drugs to end a pregnancy. This method of abortion does not require a surgical procedure and can be done at home, according to an NPR online article.
The first pill is mifepristone, which blocks a hormone known as progesterone that the body needs for a pregnancy to continue.
The second drug, misoprostol, is taken 24 to 48 hours later. This medication causes cramping and bleeding and empties the uterus.
Currently, medication abortion is legal in Indiana up to 10 weeks, said Jody Madeira, law professor with the Indiana University Maurer School of Law.
Those who seek medication abortion in the Hoosier state have to go to a health care provider and can’t have it prescribed through telemedicine.
The individual has to have an examination — including an ultrasound — and they have to get counseling. Then, they have to wait 18 hours. “It involves two trips to the provider,” Madeira said. “It’s the same as for any other abortion appointment.”
The second visit would be necessary to obtain the abortion medication, which can be used at home.
As the Indiana Legislature deliberates the issue, “any state laws about medication regulated by the FDA could run counter to federal law and be a bad law on that basis.”
The legislature could try to make it illegal to obtain the medication through the mail. “The problem there is enforcement, unless they are going to start opening the mail of every woman in Indiana,” she said.
Legislators could also try and make it illegal to travel out of state to get the medication. “But again, that’s probably not going to stick because of the interstate right to travel,” she said.
The U.S. Constitution and Supreme Court recognize and protect the right to interstate travel. The travel right entails privacy and free domestic movement without governmental abridgement.
That’s something recognized by Supreme Court Justice Brett Kavanaugh, Madeira said.
She believes “the stricter they (legislators) make their laws, the harder time they are going to have enforcing them.” She believes use of medication abortion will increase, given the Roe v. Wade Supreme Court decision.
Dr. Caitlin Bernard, a faculty member at the IU School of Medicine and practicing OB-GYN at IU Health, fears that those unable to access medication abortion “will be the most vulnerable to taking things into their own hands in terms of using unsafe methods for abortion or being forced to continue the pregnancy.”
She also wonders if the legislature might make it a crime for women who have a medication abortion. An Indiana woman was convicted in 2015 of killing her premature infant by taking abortion-inducing drugs; her feticide conviction was later overturned. Reacting to the Supreme Court decision overturning Roe v. Wade, Bernard said, “It’s a travesty. Intervening between a doctor and their patient in decisions about their health care is horrendous.”
It will have far-reaching consequences that could include increased maternal mortality, she said. More women may resort to unsafe methods for abortion. Other consequences could include limiting women’s ability to finish their education or enter good-paying jobs, as well as increased episodes of depression and psychological consequences.
Fewer physicians may choose to specialize in OB-GYN out of concerns of “having someone looking over their shoulder as to how to practice medicine,” Bernard said.
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