Federal Court Reigns in Chemical Abortion Access

April 20, 2023 | Washington, D.C.

by Eagle Forum Executive Director, Tabitha Walter

After Roe v. Wade was overturned, the left scrambled to push abortion access in every way possible. One method they have used to bypass restrictions on surgical abortion has been to increase distribution of the abortion pill. With the expansion of telehealth and prescriptions through the mail, the Biden administration has used this opportunity to deregulate chemical abortions. However, the federal courts appear to be taking a serious examination of these deadly abortifacients.   

On the heels of the 2000 presidential election, the Clinton administration approved mifepristone and misoprostol to induce abortions in pregnant women up to seven weeks gestation. In order to expedite approval from the Food and Drug Administration (FDA), the Clinton administration pressured the French manufacturer of mifepristone to donate all patent rights to the United States Population Council. Then, the FDA recategorized pregnancy as an “illness” while claiming these drugs would provide a “meaningful therapeutic benefit” over all other treatments on the market. For over two decades, Democrat administrations have continued to loosen restrictions while ignoring the dangerous side effects.

In April 2021, the Biden administration decided to no longer enforce the in-person assessing and dispensing requirements of chemical abortion pills under the guise of the COVID-19 pandemic. At this point, gestation requirements had already been expanded to ten weeks of pregnancy and no safety studies had yet to be published.

As chemical abortions have become more popular, we are seeing devastating effects these pills are having on women. Currently, there are no requirements to see a doctor in-person to obtain these drugs. No ultrasound is performed; therefore, doctors are simply guessing the length of pregnancy based on what they perceive or hear through an online camera. Then, the pills are prescribed, often without notification of the severe side effects. The two-step regimen that is taken at home first cuts off nutrients to the preborn baby and then causes uterine cramps to expel the baby.

The Biden administration has data from a longitudinal study conducted from 2002-2015, when the FDA made these decisions to legalize the drugs, that shows that chemical abortions come at 53% greater emergency room risk than surgical abortion. These ER visits increased 507% during the time of the study. Over 60% of these occurrences were miscoded for miscarriages likely due to the patient’s lack of transparency regarding the cause of the pregnancy loss. This causes doctors to overlook fatal issues such as infection and sepsis and proceed with unnecessary treatments.

In 2022, the Alliance for Hippocratic Medicine filed a preliminary injunction against the FDA for failing to protect women and girls from the dangers of chemical abortion. They cited current federal law that prohibits the mailing of abortion drugs, the lack of any studies showing the impact on young girls, and the blatant overlooking of current data showing harmful side effects. Last week, the Fifth Circuit Court of Appeals took up the case and partially ruled in their favor. While the court claimed that the statute of limitations had passed on the 2000 FDA decision to approve these drugs, they determined the Courts could weigh in on the post-2016 changes the FBA made. Expansion of the gestation period limitation and the elimination of in-person requirements can be challenged. In its decision, the Court issued a pause on the Biden administration’s new unrestricted approach. Attorney General Merrick Garland has appealed this decision to the Supreme Court. Today, the Supreme Court temporarily lifted the pause until Friday as it seeks more information and decides whether or not to take the case.

While Eagle Forum would like to see abortion pills eradicated from public consumption, we applaud the Fifth Circuits’ decision to regulate these drugs and hope for a stronger decision from the Supreme Court. We have many resources to learn more about chemical abortion. Check out our post-Roe toolkit and conversation on chemical abortions.