Opinion: What the FDA’s moves on abortion pills mean for the future

Editor’s Note: Mary Ziegler (@maryrziegler) is the author of “Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment” and the forthcoming book, “Roe: The History of a National Obsession.” Aziza Ahmed (@AzizaAhmed) is the author of the forthcoming book, “Risk and Resistance: How Feminists Transformed the Law and Science of AIDS.” The views expressed in this commentary are their own. Read more opinion articles on CNN.

This month, the US Food and Drug Administration announced that retail pharmacies will be able to sell the abortion pill mifepristone for the first time.

The move — which will allow pharmacies to request certification to offer the pill and then fill valid prescriptions for it — is part of the Biden administration’s effort to address the erasure of abortion rights in many areas of the US.

As a White House statement put it this summer, the goal is “to identify all ways to ensure that mifepristone is as widely accessible as possible”.

Since then, the FDA and the administration as a whole have faced pressure to expand access to abortion medication — or even contend that state laws criminalizing the pills are preempted by the FDA’s approval of them.

The American College of Obstetricians and Gynecologists hailed the FDA’s move to widen access to mifepristone as “an important step” in expanding access. And already, two of the nation’s largest pharmacy chains, CVS and Walgreens, have announced that they will seek certification to distribute the pills.

But this question must be asked and answered: Will the FDA’s decision to allow pharmacies to dispense the abortion pill make a tangible difference?

While the move sends an important signal that the administration is supportive of increasing access to abortion pills, the reality is much more complicated. A person seeking abortion medication would still require a prescription from a physician in order to access the pills.

For some women, especially those in states with complete or nearly complete abortion bans, it will still be illegal to mail abortion pills or to fill prescriptions for them (CVS and Walgreens have noted that they will only keep certification to dispense the pills in states where it’s legally allowed). For the women who need it most, the rule change does little.

So, the FDA’s announcement may not be as transformational as the Biden administration would have us think, but it does deliver a potent reminder of the stakes of the 2024 election: Who sits in the White House may, in part, decide the fate of abortion pills.

While it’s true that the White House may not be able to ensure abortion access in states with criminal bans, a Republican president just might be able to make sure that abortion pills are unavailable in places where abortion is legal — or even a protected right.

The abortion issue seems to have been costly for Republicans during the midterm, and it may make sense for them to proceed cautiously, even after 2024. Within the GOP, many, including former President Donald Trump, have blamed the Republican stance on abortion for the GOP’s poor showing in the midterm.

When majority leader Steve Scalise of Louisiana unveiled House Republicans’ priorities, his proposals on abortion were strikingly unambitious. And some anti-abortion groups are promoting more elaborate proposals, such as an executive order recognizing fetal personhood, but a Republican president might not need to go that far. One reason for that is the Comstock Act, a federal obscenity law passed in the 19th century.

Part of the Comstock Act, which was once best known for suppressing literature, sex education materials and even anatomy texts deemed to be obscene, seems to make it illegal to send via mail “[e]very article or thing designed, adapted, or intended for producing abortion.”

Under Biden, the Department of Justice recently released a definitive memo suggesting that mailing abortion pills is perfectly legal unless it is done with the intent of violating the law. But in a Republican administration, the DOJ could interpret the Comstock Act to apply to the mailing of every abortion pill and decide to aggressively enforce the law against those thought to violate it.

Despite the current DOJ’s interpretation of the law, anti-abortion groups are supporting local laws and bringing lawsuits suggesting that abortion pills are functionally illegal nationwide because of the Comstock Act. And neither telehealth nor in-clinic medication abortions would be possible if pills could not be mailed.

For the moment, this argument is doomed, but anti-abortion activists might not care. Their argument could succeed before a Supreme Court already transformed by one Republican president. Or a Republican DOJ in a future administration could change course.

Control of the FDA can be as much of a gamechanger as power over the DOJ. This has been true since the early days of abortion drugs’ approval in the United States, and the FDA now returns to center stage as more women and providers need access to medication abortions.

Meanwhile, anti-choice groups are getting creative in approaching the agency. Students for Life, a major anti-abortion group, has a petition before the FDA asking the agency to require any doctor prescribing abortion pills to be responsible for fetal remains — and to bag them and treat them as medical waste.

If Students for Life won, the new FDA rule could create insurmountable obstacles for abortion providers, who would have to monitor and dispose of medical waste in every procedure, including those done through telehealth.

The Alliance Defending Freedom, another major player in the anti-abortion movement, already went to court to ask federal judges to declare that the FDA exceeded its authority when it approved abortion pills.

Even a long shot may seem worth a try with the current ultraconservative Supreme Court, and besides, with a Republican in the White House, the FDA may change radically.

In 2020, a group of Republicans, led by Texas Senator Ted Cruz, sent a letter to the FDA asking that abortion pills be pulled from the market. With a Republican in the White House, they just might get their wish.

So, the latest FDA announcement may be much ado about relatively little. As far as access to abortion pills is concerned, this move must be contextualized withing the web of legal action, both at the state and federal level, which will continue to determine who can access abortion resources and who cannot. But in a different administration, both the DOJ and FDA might target abortion pills, and that means your vote for who sits in the White House matters more than you think.