The US government just took two big steps on abortion. Will they matter?

While the decisions cannot undo abortion bans in the 13 states they exist, it could make a huge difference where the right is protected

This week, the federal government announced two decisions designed to improve abortion access in the US. The first, a rule change made by the Food and Drug Administration, allows pharmacies to dispense mifepristone, one of the two drugs needed for a medication abortion. The second, an opinion drafted by the justice department, gives the US Postal Service the all clear to continue mailing abortion pills, even to states where abortion is severely restricted.

How big an impact the moves will have, however, remains to be seen.

These decisions cannot undo abortion bans in the 13 states where they exist. While major pharmacies such as Walgreens and CVS have announced they will seek certification to dispense mifepristone, a prescription for it still will not be legal in states with a ban. Anyone distributing or taking abortion pills in banned states could still face severe consequences. And the justice department opinion will not protect anyone sending pills to a banned state from being prosecuted in that state, or anyone who takes the pills knowingly to induce an abortion from being investigated.

But in states where abortion is protected, both moves could make a big difference, advocates say.

Take California as an example, which recently expanded access for abortion care in its state constitution. Until now, abortion pills had to be dispensed by a doctor, an abortion clinic, or a mail order pharmacy. But even in California, many people live hundreds of miles away from an abortion clinic. Traveling to a clinic to pick up pills can be time-consuming, financially burdensome, and sometimes practically impossible. Even receiving pills through the mail by a doctor increases barriers for vulnerable groups.

“If you’re a young person, or someone in abusive relationships, you maybe don’t want to receive the medications at home,” said Dr Ashley Jeanlus, an OB-GYN from California. “Maybe your home address is an unsafe environment. Perhaps you don’t have time for any unnecessary delays by being sent pills in the mailing system. So this really gives individuals more power to be able to get the care that they need.”

It is unclear whether the FDA ruling will see pharmacies dispensing mifepristone in states with limits on abortion that fall short of total bans.

“In a state like Florida, where there’s a 15-week abortion ban in effect, and the legislature and governor have been considering an earlier ban or placing limits on medication abortion, they might be thinking through various ways they could limit the utility and effectiveness of this policy,” says Elizabeth Nash, of the Guttmacher Institute. “They could require administration of the pills at the facility so that the provider and patient are in the same room. They could try to add additional regulations for the pharmacies that do provide this service,” she says.

Some experts believe that while the FDA ruling is a step in the right direction for expanding abortion access in states without bans, the devil will be in the detail.

Greer Donley, associate professor of law at Pittsburgh University, points out that recent statements by major pharmacy chains such as Walgreens and CVS, which said they will seek certification to stock the pills, leave many questions unanswered. They don’t, for example, clarify in which states pills will be dispensed; or whether they will be dispensed in the mail, in-person at the pharmacy, or both. Furthermore, as mifepristone is regulated differently from many over-the-counter drugs in the US, the pharmacies able to dispense the drug may be limited.

“If Walgreens and CVS are dispensing at every one of their locations in states that permit abortion, that’s a really different thing than if they’re only dispensing at a small number of locations, or if they are only dispensing via mail,” says Donley.

If the FDA wanted to make an even bigger impact, Donley says, they could have removed burdensome regulations around mifepristone under the FDA’s risk evaluation and mitigation strategies program that don’t exist in other countries like Canada.

“These regulatory tools are only supposed to be used for risky drugs. But mifepristone is an extremely safe drug. It’s much safer than many drugs that are on the market without [the same regulation], including Viagra and Penicillin. Probably the most important thing the FDA could have done is it could have removed the [regulation]. Every major medical association in the United States has said that that is what the FDA should have done,” says Donley.

The Department of Justice opinion finds that mailing abortion pills, including to states with bans, does not violate the Comstock Act, a 1873 federal law that prohibits sending “obscene” items in the mail and encompasses contraceptives and abortifacients. Donley points out that the decision is not a court option – and that a looming case in Texas challenging the FDA’s approval of abortion pills could effectively undo that opinion in a few months’ time.

“In a few months, we could have an injunction in Texas, that states the exact opposite of the DOJ opinion,” says Donley. “So it’s a really good thing that the government’s weighing in but ultimately, the courts … might reach a different conclusion,” says Donley.

But while advocates would like to see more, they have cautious praise for the administration’s moves this week: “The government is putting some oomph behind access to abortion,” says Nash.


Poppy Noor

The GuardianTramp

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