Members Only | December 20, 2022 | Reading Time: 5 minutes
Abortion pills, abortion bans and Republican policies that kill
Anti-abortionists claim in a new suit that the Food and Drug Administration shouldn’t have approved it in the first place.
Any abortion activist will tell you that banning abortion doesn’t stop abortions – it stops safe abortions. Thanks to the existence of medication abortion (also called the abortion pill), a lot of illegal abortions can be much safer than they were before Roe.
We don’t need to resort to back alley abortions with rusty coat hangers, early term abortions (the vast majority of abortions) can be taken care of with two pills that can be obtained legally or illegally (the medication is currently approved for up to 10 weeks but is used later in pregnancy off label).
Unfortunately for conservatives, the abortion pill is thwarting a lot of their plans. So what are they doing? They are claiming the Food and Drug Administration shouldn’t have approved it in the first place.
Attacking the FDA
Twenty-two years ago the FDA approved the abortion pill, which has been shown to be safe and effective. This approval came a decade after the medication had been available in Europe and after a clinical testing phase in the US. There was significant data to show that the drug was safe.
While conservatives obviously objected to the FDA’s decision, there was little to suggest there was anything suspect about the process of the decision itself. It’s also worth noting that taking two pills is almost always a safer treatment than a surgical option, which requires anesthesia.
As a result of the pandemic, before Dobbs allowed state level abortion bans to go into effect, the FDA changed its policy to allow the abortion pill to be mailed and be prescribed using telemedicine.
Unfortunately, despite the common sense of such a policy, many states passed their own restrictions to bar telemedicine for abortion. Eighteen states have laws requiring in-person prescriptions of the abortion pill right now. (Obviously doctors can’t prescribe the abortion pill in a state where abortion has been banned.)
It’s much easier and safer to have a self-managed abortion with the abortion pill than to track down a doctor willing to perform an illegal surgical abortion (or travel to another state for a surgical abortion).
Obviously that means anti-abortion activists are really really annoyed that people are still accessing safe, if illegal, abortions. (An anti-abortion organization in Texas is actually planning to test the water for contaminants to see if people are taking the abortion pill.)
Republican lawmakers want to treat abortion pill sites like child pornography sites and actually require internet providers to censor them. Some anti-abortion activists want people charged with trafficking and jailed if they distribute the abortion pill in states which ban abortion.
And in the most dangerous attempt to limit access to the abortion pill, a conservative Christian organization, the Alliance for Defending Freedom, joined by three other anti-abortion groups, has brought a suit to challenge the legality of the abortion pill in all 50 states – not just through state level bans. They claim that the FDA didn’t have the authority to approve the abortion pill 22 years ago.
They’re claiming an organization that literally exists to approve drugs doesn’t have the authority to approve a drug.
The suit challenges the safety of medication abortion, the process by which the FDA approved the drug, and the science behind the FDA’s decision. The suit claims that “the FDA failed America’s women and girls when it chose politics over science and approved chemical abortion drugs for use in the United States.”
The suit also bizarrely claims that the FDA never studied the safety of the two drugs (under the labeled conditions of use) and that they ignored the supposedly “substantial evidence” that medication abortion causes more complications than surgical abortions.
They even threw in a claim that medication abortion increases the abuse of sex trafficking victims, because the victims could theoretically be forced to take it.
Just as ridiculous
First of all, the abortion pill is incredibly safe. Data suggests it’s safer than Viagra, penicillin and even some over-the-counter medications. The FDA had a clinical trial and a decade of European evidence when it approved the drug in 2000 and now has another 22 years to show that the safety of the drug is not in question.
There is nothing to suggest they ignored evidence of complications in 2000, and the data since 2000 does not support significant complications from taking medication abortion.
While this challenge is obviously ridiculous and should be immediately thrown out, we all know conservative judges are happy to entertain totally nonsense arguments if it means they can restrict access to abortion.
The only claim in the suit that could give a conservative judge cover is the language the FDA had to use to grant accelerated approval to the drug. The regulation allowing accelerated approval stated in 2000 that the FDA could approve “certain new drug products that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit to patients over existing treatments.”
The suit claims that the FDA couldn’t approve the abortion pill under this regulation because pregnancy isn’t a “serious or life-threatening illness” and the abortion pill doesn’t “provide meaningful therapeutic benefit to patients over existing treatments.”
I have no desire to quibble over the term “illness” being applied to pregnancy but pregnancy is unquestionably a serious and life-threatening strain on the body. An abortion, specifically a medication abortion, is obviously a useful treatment of that serious threat to a person’s body and medication abortion provides a significant benefit over a surgical abortion.
Unfortunately, while this claim is just as ridiculous as the others in the suit, I can imagine an anti-abortion judge just salivating at the pedantic argument that pregnancy isn’t an “illness” so the FDA didn’t have the authority to approve the drug. (The suit was filed in Texas where they were sure to get a far right Trump appointee.)
Killing many of us
However we may feel about applying the word “illness” to pregnancy, abortions save lives. An analysis from the Commonwealth Fund has found that there is a correlation between abortion restrictions and higher infant and maternal mortality. The numbers are staggering.
In states with abortion bans or significant restrictions, maternal death rates were 62 percent higher in 2020 than in states with abortion access. One has to wonder if that number is even higher since Roe was overturned and abortions to save the life of the mother have gotten even more difficult to access.
Obviously not every death can be attributed to abortion restrictions. States without abortion access are also more likely to be “maternity care deserts.” The same states are also more likely to have worse healthcare outcomes across the board and more restrictions on medicaid coverage as well as fewer OBGYNs.
However, despite these other factors, the lack of abortion access itself is likely contributing to maternal and infant deaths. Someone without access to good healthcare, financial resources, prenatal care might decide abortion is the right decision for them before it becomes a life or death issue.
Abortion can be used to terminate a pregnancy that increases strain on the pregnant person’s body and can terminate a pregnancy likely to result in fetal abnormalities and infant death.
Finally, so-called “life of the mother” exceptions in abortion restrictions are confusing and often written vaguely to limit their use. Doctors are often put in the position of deciding if the pregnant person is in enough danger to warrant the legal risk of performing an abortion when it’s deemed legally necessary. Unfortunately, these are the cases that medication abortion can’t help with.
If this suit is successful it will upend access to abortion in all 50 states and make self-managed and illegal surgical abortions much more dangerous. People in states where abortion is legal will only have access to the surgical option and people in states with abortion restrictions will be in the same situation we were in before Roe.
Once again, conservatives want to enact policies that will result in killing many of us.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.