Greater use of drugs, access to travel render pending state legislative actions limited
If the Supreme Court is, in fact, going to overturn the 1973 Roe v. Wade decision by the time its term ends in late June and allow states to regulate the practice, the ruling will, for practical purposes, not impact most abortions in the U.S.
According to the pro-abortion rights Alan Guttmacher Institute, about 54 percent of all abortions in the U.S. are done through drugs, not surgery, notably, the abortifacient Mifeprex (generic name mifepristone and often called RU-486, its experimental name). In 2017, it was 39 percent.
Guttmacher uses surveys to estimate abortion rates, but their estimates are not far off from reported surgical vs. drug-induced abortions counted by the Center for Disease Control and Prevention.
For 2019, 566,378 abortions were reported from the states, and about 277,000 were induced by drugs (i.e., Mifeprex).
This excellent article from the Kaiser Family Foundation from early April estimates about 2.75 million drug-induced abortions since FDA approved Mifeprex in 2000. Its use in abortions is clearly growing. The highest number of abortions reported for all time was in 1990 – about 1.6 million.
Mifeprex is approved for use in abortions at 10 weeks of pregnancy. On Dec. 16, 2021, the FDA removed the in-person dispensing requirement for mifepristone and expanded the distribution to certified pharmacies in addition to certified clinicians. This change allows for distribution of medication abortion by mail in states that do not restrict telehealth for medication abortion. Despite the change to the in-person requirement, prescribers are still required to be certified by the manufacturers
As a result, FDA has liberalized the drug’s use in recent years, and state legislatures are powerless to stop the use of the drug. They can regulate which providers prescribe it, as do 33 states, but cannot outright ban the product, at least without a serious court challenge.
That’s because the interstate sale of prescription and over the counter drugs is protected under the Constitution’s ” Commerce Clause, which allows laws passed by the federal government to override state laws that affect interstate commerce.
Congress has asserted federal control over the approval and distribution of prescription and over the counter drugs via the 1938 Food, Drug and Cosmetic Act, and a number of subsequent amendments. The drug industry – which has some of the best lobbyists money can buy – has successfully been able to ensure federal “pre-emption” of a panoply of efforts by states to ban Rx and OTC drugs. Big Pharma would likely put an army of lawyers on any state that tries to curtail the use of abortion drugs or any other medical product.
Noah Feldman, a liberal pro-abortion rights professor at Harvard Law School, agrees in this opinion piece on Bloomberg and the Washington Post from early April: “The constitutional justification for this federal authority is that drugs affect interstate commerce. .. Congress and the FDA have occupied the field of drug regulation, thus preempting states from legislating in a way that bars a drug approved by the federal government.”
Although the Guttmacher Institute notes that up to 26 states could adopt some restrictions on abortion if Roe is overturned, the reality is that 24 states (largely more populous and with liberal legislatures) will not restrict abortion. In addition, in the 12 or so “Red states” that have not adopted anything yet, but may have dormant laws from pre-1973, many will limit abortion to the three-pronged “save the life of the mother, rape, incest” line. So, this can exempt a lot of surgical abortions from restrictions.
Pro-abortion rights groups are already discussing providing transportation to poor women who have to go across state lines to get a surgical abortion. Feldman writes: “Some states are going to try to bar travel for abortion purposes, but such bans are likely to be held unconstitutional even by the current court.”
But according to an April 12 article in ValuePenguin, which monitors auto insurance issues, about 91.5 percent of the U.S. population has access to a car. Car ownership rates are the lowest in states like New York, Illinois or the District of Columbia, which are not likely to restrict abortions at all.
In contrast, in 1970, three years before Roe was decided, about 18% of the U.S. population did not own cars, The costs of travel to the few states that allowed abortion back then was a major driver of the effort to legalize the procedure nationwide and obviate the “back alleys.”
According to the latest CDC data, over the past 10 years, approximately three fourths of abortions were performed at under 9 weeks’ gestation, and this percentage increased from 74.8% in 2010 to 77.4% in 2019. Planned Parenthood, the abortion rights group, acknowledged this in one of their pamphlets, noting only 8% of abortions are conducted beyond 13 weeks of pregnancy, when a surgical abortion is the only option. This amounts to about 48,000 women, based on current statistics, and many of them live in states with liberal abortion laws – or can easily get to a state like that.
Hence, it is fiction and political posturing to say that women in need will have to return to the back alleys and coat hangers to induce abortion. But, I suppose it makes for higher news ratings, viewership and gins up donations for both camps.
But based on the facts, it would seem abortion will continue to occur in the U.S. whether Roe is repealed or not.