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HHS Weighs Abortion Access Actions, Including Possible Health Emergency Declaration

Axios, January 31, 2023

The Biden administration is weighing additional actions to help people access abortions, which may include a public health emergency declaration. The big picture: Both abortion rights advocates and Democratic lawmakers have urged the Department of Health and Human Services and President Biden to take such a step in response to the overturning of Roe v. Wade, which they say has created a “full-scale reproductive health crisis” across the U.S. The lawmakers argued that such a move would allow the administration to help support states that protect abortion, deploy Public Health Services Corps teams and give the government “the ability to accelerate access to new medications authorized for abortion.” What he’s saying: “There are discussions on a wide range of measures … that we can take to try to protect people’s rights,” HHS Secretary Xavier Becerra told Axios during a pair of Monday public events that touched on reproductive health access. “There are certain criteria that you look for to be able to declare a public health emergency. That’s typically done by scientists and those that are professionals in those fields who will tell us whether we are in a state of emergency and based on that, I have the ability to make a declaration,” Becerra added, when asked about a public health emergency declaration on abortion. He said that there hasn’t been a “full assessment” on what a declaration on abortion would look like and whether conditions merit it, but there’s still “an evaluation” on the topic. Don’t forget: “We are constantly exploring additional actions we can take to protect and expand access to reproductive health care, including abortion care, and are prioritizing the actions that can give us the highest impact and most durable solutions,” an HHS spokesperson told Axios. Since Roe v. Wade was overturned, HHS has taken steps to protect reproductive health access, including issuing guidance saying that abortion care is protected in emergency situations and stating that birth control insurance coverage is guaranteed under federal law.

A Trump-Appointed Texas Judge Could Force a Major Abortion Pill Off the Market

NPR, February 1, 2023

A case before a federal judge in Texas could dramatically alter abortion access in the United States – at least as much, some experts say, as the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision last year, which overturned decades of abortion-rights precedent. A decision is expected soon in the case challenging the Food and Drug Administration’s approval more than 20 years ago of the abortion drug mifepristone, which a growing number of patients use to terminate pregnancies.Jenny Ma, senior counsel with the Center for Reproductive Rights, says the outcome of the suit brought by a coalition of individuals and groups opposed to abortion – could amount to a “nationwide ban on medication abortion” with a greater impact than Dobbs. “That decision left the decision about abortion up to the states,” Ma says, “but this would be one court in Texas deciding whether or not medication abortion could be allowed across this country, even in states that have protected abortion since the Dobbs decision.” Tiny pill, big impact: Medication abortion — as opposed to a surgical procedure — is now the most common way that people terminate pregnancies. That’s especially true in the first trimester when the vast majority of abortions occur. Abortion pills are increasingly relied on by people who live in places where access to clinics is limited by state laws or geography. While various regimens exist for terminating pregnancies with pills, the gold standard for medication abortion in the United States is a two-drug protocol that includes mifepristone and another, less-regulated drug, misoprostol. But now, a coalition led by the anti-abortion rights group Alliance Defending Freedom has filed a lawsuit in federal court in Texas asking a judge to reverse that approval. Revisiting a decades-old drug approval. The anti-abortion group is raising questions about the FDA’s approval process in 2000 and some of the rule changes that have been made since then. They note that under President Biden, the FDA now allows mifepristone to be mailed or dispensed by retail pharmacies, while it used to be subject to more layers of restriction.

A Volatile Tool Emerges in the Abortion Battle: State Constitutions

The New York Times, January 29, 2023

When the Supreme Court overturned Roe v. Wade and the constitutional right to abortion in June, it declared that it was sending the issue back to the “people and their elected representatives.” But the fight has largely moved to a different set of supreme courts and constitutions: those in the states. On a single day this month, South Carolina’s highest court handed down its ruling that the right to privacy in the State Constitution includes a right to abortion, a decision that overturned the state’s six-week abortion ban. Within hours, Idaho’s highest court ruled in the opposite direction, saying that state’s Constitution did not protect abortion rights; the ban there would stand. Those divergent decisions displayed how volatile and patchwork the fight over abortion rights will be over the next months, as abortion rights advocates and opponents push and pull over state constitutions. For abortion rights groups, state constitutions are a critical part of a strategy to overturn bans that have cut off access to abortion in a wide swath of the country. Those documents provide much longer and more generous enumerations of rights than the United States Constitution, and history is full of examples of state courts using them to lead the way to establish broad rights — as well as to strike down restrictions on abortion. They offer a way around gerrymandered state legislatures that are pushing stricter laws. The Supreme Court’s decision has left abortion rights groups with few other options. In their most hopeful scenario, state courts and ballot initiatives to establish constitutional protections would establish a firmer guarantee for abortion rights than the one in Roe, which rested on a protection of privacy that was not explicit in the U.S. Constitution. But just as abortion rights groups are trying to identify protections in state constitutions, anti-abortion groups are trying to amend those same documents to say they provide no guarantee of abortion rights. And while the courts may appear to be the last word because their decisions are not subject to appeal, judges in 38 states have to face the voters. A change on the bench has sometimes meant that the same document found to include a right to abortion suddenly is declared not to include that right, in the space of a few years.

Americans Don’t Know if Abortion is Legal in Their State, New Poll Shows

The 19th, February 1, 2023

Half of women are unsure if medication abortion is legal in their state, and a third don’t know if they are allowed to access emergency contraceptive pills, new polling from the Kaiser Family Foundation (KFF) found. The survey, conducted in January, asked people about their understanding of abortion law. It reveals widespread confusion about abortion laws regardless of what is legal — a reflection of the legal chaos that has ensued since Roe v. Wade was overturned this past summer. The survey included perspectives from men and women but did not have sufficient response data to account for nonbinary people. Since the Supreme Court’s June 24 decision, many of the abortion bans in states were blocked by courts, even if only temporarily. The legal back and forth has made it difficult for people to keep track of what is allowed in their state and what they must travel somewhere else to access. “What we’re seeing are the implications of what happens with a drastically changing landscape in terms of abortion access in this country,” said Ashley Kirzinger, a pollster with KFF. “We’re seeing the most movement within states on abortion laws I think that we’ve ever seen, even pre-Roe. There’s so much action happening on the state level and the public is having a hard time keeping up.” It’s unlikely, she added, that the confusion abates in the near future, especially as states continue to litigate whether and to what extent they can restrict access to abortion. About 47 percent of women in states with abortion bans did not know if they could legally access mifepristone, one of two medications used to induce an abortion. Another 13 percent incorrectly believed that the medication was legal to use in their state. The remaining 40 percent knew that medication abortion was illegal. Even in states where abortion remains protected, 44 percent of women were unsure if they could legally access mifepristone, and about 1 in 10 believed they could not. Another 44 percent knew that they were legally allowed to get an abortion. Some of that uncertainty likely stems from abortion laws boomeranging between state courts, leaving residents unaware that a ban that was once actively enforced no longer is.

Republican AGs Warn Pharmacies Against Mailling Abortion Pills Within Their States

CNN, February 1, 2023

Republican attorneys general from 20 states wrote letters to executives at CVS and Walgreens warning the pharmacy chains against using the mail to dispense abortion pills in their states, in a shot against a new Biden administration policy. The letters rebuke recent guidance from the Justice Department – issued in an opinion from the DOJ’s Office of Legal Counsel – that concluded the federal law did not prohibit the mailing of abortion pills. The release of the Justice Department opinion came ahead of the rollout of new rules from the Food and Drug Administration allowing certified pharmacies to dispense medication abortion with a prescription, including by mail order. “We reject the Biden administration’s bizarre interpretation, and we expect courts will as well,” the GOP attorneys general wrote, while suggesting that they may bring civil litigation to challenge the claim that federal law allows the mailing of abortion pills. “Obviously, a federal criminal law – especially one that is, as here, enforceable through a private right of action – deserves serious contemplation,” they wrote. Some states prohibit the use of mail to deliver abortion pills. Missouri – whose attorney general, Andrew Bailey, spearheaded the letters – also “prohibits unfair or deceptive trade practices – and trade practices that violate federal law necessarily are unfair and deceptive,” the letters said. Medication abortion – in which pregnancies are terminated with a two-pill regimen – now makes up a majority of the abortions obtained in the United States. Several states restrict medication abortion, some with blanket bans on abortion and others with specific limits on access to abortion pills. CVS and Walgreens have said that they intend to comply with federal and state law with their plans to dispense mifepristone, one of the two drugs used in medication abortion. (Pharmacies were previously allowed to distribute the second drug, misoprostol.) Asked about the new letter from the attorneys general, a spokesperson for Walgreens said it is not dispensing mifepristone at this time. “We intend to become a certified pharmacy under the program, however we fully understand that we may not be able to dispense Mifepristone in all locations if we are certified under the program,” the spokesperson Fraser Engerman said in an email.

ICYMI: In Case You Missed It

“This is a very deliberate strategy to test the boundaries of how far they can go.” @shainaleah, our Director of Reproductive Health and Rights, weighs in for @bloomberglaw https://t.co/Sbo8pWXebS

— National Partnership (@NPWF) January 30, 2023

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Note: The information contained in this publication reflects media coverage of women’s health issues and does not necessarily reflect the views of the National Partnership for Women & Families.