Abstract
Abortion is now illegal in roughly a third of the country, but abortion pills are more widely available than ever before. Clinics, websites, and informal networks openly facilitate abortion pill distribution, legally and illegally, across the United States, while antiabortion advocates and legislators are adopting all manner of strategies to attack pills. This Article is the first in the legal literature to explore this defining aspect of this new environment and the novel issues it raises at the level of state law, federal policy, and on-the-ground advocacy.
The Article begins by detailing antiabortion strategies to stop pills by any means necessary. These tactics include a federal lawsuit attacking the approval and regulation of mifepristone, one of two abortion pills; a revival of the long-unenforced Comstock Act’s ban on mailing anything that induces an abortion; a redefinition of abortion’s location to chill medication abortion provision; attacks on online information and pill supply chains; and attempts to target those who take or help someone access abortion pills.
We then consider the opposing movement to increase access to abortion pills: abortion shield laws that protect cross-border telehealth, pharmacist prescription of abortion pills, and efforts to evade abortion bans through missed period pills and advanced provision. Finally, we examine how the U.S. Food and Drug Administration (FDA) can use its powers to increase or decrease access to pills, including lifting the unnecessary restrictions on medication abortion, changing its label, or asserting that FDA rules governing medication abortion partially preempt state abortion bans.
The Article concludes by offering the first analysis of how, after Roe’s reversal, abortion pills and their attendant controversies will transform the abortion debate in this country. With pills, state governments and the medical establishment lose even more control over abortion; rather, informal and underground networks will meet much of the demand for abortion pills, cutting out gatekeepers. Pills’ wide availability will also reshape the definition of abortion, which is ill-suited for the ambiguities of drug provision, and could destigmatize abortion care. At the same time, however, attempts to punish people who provide or use pills will exacerbate the public health and criminal justice consequences that new abortion bans have wrought, entrenching existing class and race differences. Thus, as abortion pills proliferate—both within and outside of law—abortion inequities could as well. Ultimately, these emerging legal issues will profoundly alter how people think about abortion.
[This version was updated October 28, 2023.]
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