This article was originally posted by Edward Mechmann’s blog Stepping Out of the Boat on March 10, 2023

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In January 2023, the FDA announced a new policy that permits a woman to obtain abortion drugs from any local pharmacy. This has precipitated a complex and often confusing battle over the laws affecting chemical abortions.

Things change quickly, and there are a bunch of legal issues tangled up here—state abortion laws, limits on telehealth, federal laws on mailing abortion materials, administrative procedure laws, the U.S. Constitution’s Supremacy Clause, and federal and state abortion funding. Let me see if I can make some of this reasonably clear.

The FDA and Chemical Abortion

Chemical abortion is a two-drug process intended to kill and expel a developing child from the womb in the first ten weeks of pregnancy. The first drug is mifepristone, which is the generic name for “Mifeprex.” Its only purpose is to kill a baby in the womb by denying her nutrition and oxygen. The second drug, misoprostol (brand name “Cytotec”), is used for legitimate purposes but is also used for chemical abortions as well. The drugs are approved for use up to ten weeks of pregnancy.

Under current rules, any doctor certified by the FDA can prescribe mifepristone. During the COVID epidemic, the FDA granted permission for doctors to prescribe the drug over telehealth—without seeing the patient in person—and for the drug to be delivered by mail. Prior to the most recent rule change, only certified doctors, clinics, and hospitals could dispense the drug. Now, any retail pharmacy can qualify, merely by filling out a form with the FDA.

The major pharmacy chains (CVS, Walgreens, and Rite-Aid), have already announced that they will begin to dispense the abortion drugs. Walgreens has backed away from that a little, which I’ll discuss below. Other major chains (e.g., Walmart, Stop and Shop) have not yet made public comments.

State Abortion Laws

State laws are the first key element in this discussion. States traditionally have very wide latitude in regulating medical practice, and after Dobbs the constitutionality of abortion is an issue for state constitutions.

As of today, twelve states ban abortion throughout pregnancy—Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia. One additional state, Georgia, bans abortions after 6 weeks, so it will seriously limit chemical abortions. The state legislature in Wyoming recently passed a total abortion ban, but the governor hasn’t signed it yet. About 15 percent of all abortions take place in those states.

Fourteen states ban or seriously limit telehealth abortions—Alaska, Arizona, Florida, Indiana, Kansas, Michigan, Nebraska, North Carolina, North Dakota, Ohio, South Carolina, Utah, Wisconsin, and Wyoming. About 34 percent of all abortions take place in those states.

So this fight could have a huge impact—almost  50 percent of all abortions take place in states with bans or limits that would prevent or seriously hinder chemical abortions.

Federal Laws

Article VI of the U.S. Constitution contains the “Supremacy Clause”:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

This means that if there is a conflict between federal and state law, the federal law controls. In applying this provision, the Supreme Court has also developed the doctrine of “preemption,” under which federal legislation can either explicitly or implicitly “occupy the field” and thus prevent states from adopting any laws on the same subject. As with any constitutional principle, this is a very complicated area and there are many nuances and exceptions.

The FDA has exclusive authority under federal law to determine the safety of drugs and regulate their use. Generally, that would mean that the FDA has “occupied the field,” and no state can issue regulations that contradict its rules. However, the statute that gives the FDA its authority did not contain an explicit preemption provision.

The FDA approval of the abortion drugs, and approval of telehealth and mail delivery, clearly conflicts with the state laws that ban abortion or limit telehealth. So, this has put the issue of federal preemption directly in play. It will be up to the courts to decide if the FDA implicitly overrules those state laws.

There’s another federal law that explicitly bans the mailing of abortion drugs. The federal Comstock Act was enacted in 1873 (yes, you read that correctly—it was signed into law by President Grant!) and is still on the books at 18 U.S. Code § 1461 and 1462. It unambiguously outlaws the use of the mails or any other carrier to send or deliver “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.” This law plainly conflicts with the FDA rule that permits mailing abortion pills in connection with telehealth.

The Biden Administration Justice Department has issued a flimsy legal opinion, claiming that the Comstock Act only applies if a person knows that the drug will be used for an illegal abortion. But that’s a perfect example of the Tinkerbell principle—if you clap hard enough, the law will mean something different than what it really says. It’s hard to see how that will stand up in court.

So there are several serious legal conflicts over abortion drugs, both within federal law and with state laws. This will eventually lead to lengthy and complicated litigation.

Pushback Against the FDA and Pharmacies

The FDA’s actions have produced legal pushback.

Twenty state attorneys general have confronted the major pharmacies, and demanded that they not sell abortion drugs in their states. They based their argument on their various state laws, and on the Comstock Act.

Walgreens has announced it will obey the law and won’t sell the drugs in those states. That’s a little strange to me, since some of the twenty states don’t have a current ban on early abortions or on the pills. Other chains have not made any public commitments.

That decision by Walgreens has incited the furor of pro-abortion forces. This included the anti-life governor of California, who cancelled a contract with Walgreens in retaliation. New York’s fanatically pro-abortion governor has threatened “consequences” if the drug chains don’t sell the pills. It looks like government attacks on private businesses aren’t “fascism” when it’s the progressives who do it.

There is also a lawsuit in Texas challenging the FDA’s approval of mifepristone. The argument is that the FDA acted “arbitrarily and capriciously” in its review of the pill’s safety standards, and thus abused its authority. This is a very difficult argument to make, given courts’ high degree of deference to decisions made by administrative agencies within their area of competence. There are also significant legal hurdles, such as standing (whether the plaintiffs were actually harmed) and the statute of limitations.

But the lawsuit is serious enough that the media and abortion advocates have been attacking the integrity of the judge and issuing scare stories about the potential result.

All this will take years to untangle in court. Of course, a change in administration could change everything, as we’ve seen in many other areas.

What Can We Do?

For those of us who live in pro-abortion states like New York, there is nothing we can do about the legality of abortion pills. In fact, some state laws, again like New York’s, require commercial health insurance plans to pay for the deadly pills. The New York City government is already handing them out for free at its clinics.

But there is still a lot that we can do. People should join the effort to convince the major pharmacy chains to change their minds. There are several online petition campaigns that make it easy. We can also urge our local pharmacies not to become abortion clinics. We have sample resources for that. If they agree to sell the pills, we should transfer our prescriptions away from the chain pharmacies and do business with people who don’t think it’s okay to kill unborn children.