The Biden administration has finally taken steps to make abortion pills at least as accessible as erectile dysfunction pills. All it took was the Supreme Court’s revocation of an established constitutional right for the first time in US history—in the form of Dobbs v. Jackson Women’s Health—and the culmination of the Republicans’ decades-long war on reproductive freedom to get them to do what Democrats should have done years ago. This week, the Food & Drug Administration made a small legal change in its classification of the drug mifepristone, and the Department of Justice confirmed that the drug can be sent through the mail.
Mifepristone is a drug that can be used for the treatment of high blood sugar, but it can also be used off-label to inhibit the hormone progesterone, which is necessary for maintaining pregnancies. Along with another drug, misoprostol, which causes contractions, it can be used to medically induce abortions. The mifepristone-misoprostol combination is already used in over half of abortions performed in the United States, with demand only increasing since the Supreme Court adopted Christian fundamentalist theory crafting and revoked the right to abortion last June.
Mifepristone has been used in Europe since the 1980s (my generation called it “RU-486,” and every sex-ed teacher reminded us that it “does not prevent AIDS”). In the United States, the FDA first approved it for use in 2000, allowing it to be used through seven weeks of gestation, then extended its use to 10 weeks in 2019. But until now it had only been available in-person at a clinic or doctor’s office.
This week, the FDA abandoned that restriction and instituted a change that will allow the pill to be obtained at local pharmacies, or by mail, with an ordinary prescription. Since misoprostol is already widely available, the change should make the safe, reliable, nearly 40-year-old process of medication abortion more accessible to women and pregnant people.
At least, it should make the drug more accessible in blue states. In forced-birth states, many of the bans targeting abortion providers also prohibit the use of abortion drugs like mifepristone. One challenge for the big-chain pharmacies that might carry the drugs, like CVS or Walgreens, is that they will likely need to have different rules for different states.
Another issue for the pharmacies to consider: violence. The forced-birth movement has a long history of expressing its allegedly “pro-life” views by intimidating, stalking, and murdering abortion providers. Part of the agreement with the drug’s manufacturers includes pharmacies’ not publishing the names of doctors who prescribe the medication, to protect those doctors’ safety. But that also means that pharmacies cannot list the names of prescribing doctors in their nationwide databases, which they commonly do. And that doesn’t even get into the threats that these companies might face if they provide the medication, including in states where it is legal. It’s therefore likely that smaller, local pharmacies will be the early adopters of these new rules.
This is where the new DOJ rule might be particularly helpful: It could make it easier to get abortion drugs from local pharmacies to people in states that deny reproductive rights.
The Office of Legal Counsel issued a memo at the request of the DOJ saying that shipping abortion medication through the mail is legal, even after the Supreme Court’s ruling in Dobbs. The memo related to a provision of the Comstock Act that prohibits the mailing of any “article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.” The Comstock Act was passed in 1873 at the behest of a self-styled anti-vice crusader named Anthony Comstock. It’s essentially an anti-“obscenity” law—because Comstock was one of those dudes who was willing to throw away freedom and liberty every time he saw an exposed nipple—but it has been regularly used by conservative forces to curtail access to abortion and contraceptive medications. The Comstock Act was once used to prevent the distribution of birth control pills, but it was defanged by the Supreme Court case that recognized a right to privacy and a right to contraception, Griswold v. Connecticut. Roe v. Wade flowed from the court’s decision in Griswold, and with Roe gone, there was some confusion as to whether the Comstock Act could once again prevent the distribution of reproductive medication through the mail.
But the OLC memo says the Comstock Act can’t be used to punish a person who sends abortion medication through the mail “where the sender lacks the intent that the recipient of the drugs will use them unlawfully.” That means that I (or a doctor) could send mifepristone to anyone, in any state, on the assumption that they would use the drug in compliance with whatever state laws apply to their jurisdiction. That’s a big deal, because many state abortion bans seek to punish the providers of reproductive services as well as the individuals of conscience who help people obtain reproductive services. The OLC memo provides some cover to out-of-state activists who are trying to get medicine into the hands of those who need it.
Whether people living in forced-birth states can actually use these approved medications without threat of reprisals and intrusions from red-state prosecutors is anyone’s guess. But with these changes, it’s easier for people to get medication, potentially without the fugitive uterus catchers knowing at all. Pregnant people could get a prescription for medication through telehealth services and, arguably, travel to a pharmacy just over the border to pick up the meds or have them discreetly sent to their homes.
No legal workaround can replace a constitutional right. Women and pregnant people will be at risk as long as the fundamentalist Supreme Court and Republican lawmakers are allowed to be in charge of reproductive health. But after decades of Republican politicians restricting abortion access and Democratic politicians failing to do enough to restore them, it feels like the Democrats have at least joined the battle. The Biden administration is expanding access to safe, effective, and legal abortion medication. It’s something that should have already happened, but let’s not worry about being late to the reproductive health access party and embrace the fact that the administration showed up at all.