Will overturning Roe end abortion?
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.
For 2019, 566,378 abortions were reported from the states, and about 277,000 were induced by drugs (i.e., Mifeprex).
The Kaiser Family Foundation 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 (all surgical).
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 the 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, the 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 they cannot outright ban the product, at least without a serious court challenge.
That's because prescription and over-the-counter drugs are protected under the Constitution's Commerce Clause.
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 medical product.
Noah Feldman, a liberal pro-abortion professor at Harvard Law School, stated that "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.
Pro-abortion 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."
In addition, in the 12 or so "red states" that have not adopted anything yet, but may have dormant laws from pre-1973, my political sense tells me their legislatures will be hard pressed to implement many restrictions on abortion, as they will be besieged by the pro-life and pro-choice forces on either side. 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 whatever ending laws.
In Virginia, there will likely be no action on restricting abortion, given the Democrat-Republican split in the General Assembly.
According to the latest CDC data, over the past ten years, approximately three-fourths of abortions were performed at under nine weeks' gestation, and this percentage increased from 74.8% in 2010 to 77.4% in 2019. Planned Parenthood, the abortion advocacy group, acknowledged this in one of its pamphlets, noting that only 8% of abortions are conducted beyond 13 weeks of pregnancy when a surgical abortion is the only option.
So, based on current statistics, about 48,000 women could be impacted by this decision annually — and most of them will be in or near states that are blue and will likely not make any changes in the law.
Hence, it is fiction and political posturing to say 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 and viewership and gins up donations for both camps.
But based on the facts, it would seem that abortion will continue to occur in the U.S. whether Roe is repealed or not.
Ken Reid cover the FDA and pharma from 1986 to 2021 for his own trade newsletters. He also is a Republican activist in Virginia, where he served in local elected office for 10 years -- www.KenReid.org
Image: Elvert Barnes.