Patients in the US may see expanded access to medical abortion, but not in Texas.

The federal government this week announced two initiatives to expand access to medical abortion in early pregnancy, but they will have little effect on patients in Texas.

A FDA regulation and a non-binding DOJ opinion could make it easier for patients to get misoprostol and mifepristone through the mail and pharmacies. Drugs, usually taken in tandem, account for half of all abortions in the US, but Texas’ ban on abortion is wiping out access to them in the state.

FDA decision

A revised FDA rule this week allows major pharmacies like CVS and Walgreens to fill prescriptions for mifepristone, specifically. Before the pandemic, medicine had to be prescribed and obtained through a qualified doctor. The rule also reinforces the FDA’s previous decision to allow doctors to prescribe the drug in a telehealth setting. This provision is a pandemic era policy that has been in effect since April 2021.

As NPR points out, Walgreens said it intends to get certified to distribute the drug, and CVS said it’s exploring doing the same in states that don’t restrict medical abortion.

Texas is not one of those states.

In 2021, state legislators approved two measures that effectively banned access to abortion: one banned abortion after about six weeks of pregnancy, and another restricted access to misoprostol and mifepristone. And the so-called trigger law, which bans virtually all abortions, went into effect last year after the U.S. Supreme Court overturned a federal protection under Rowe vs. Wade in June.

In light of these restrictions, the FDA rule “does nothing” for Texas patients, said Molly Duane, senior lawyer for the Center for Reproductive Rights.

“It’s really about making telemedicine more accessible and accessible to patients, which will no doubt… reduce some of the barriers in states where abortion is legal,” she said. “But… that doesn’t address the fact that providing medical abortion pills – regardless of who prescribes them or where – is completely illegal in states like Texas.”

Texas is one of 13 states that bans most abortion-related medical services. The Texas ban does not allow exceptions in cases of rape or incest.

This has resulted in a flood of patients leaving the state to get help. As reported by Houston Public Media, the FDA’s decision could expand potential Texas patients’ access to out-of-state telemedicine visits with a qualified doctor in Colorado or New Mexico. They could then travel to that state to buy medicines from a pharmacy.

Opinion of the Ministry of Justice

Earlier this week, the Justice Department also pushed for protection of access to abortion drugs. In a Nonbinding Opinion, the Department of Justice authorized the United States Postal Service to Deliver mifepristone and misoprostol to patients. This is considered a victory for abortion rights advocates, but does not guarantee absolute legal protection.

Duane said the opinion disproved the anti-abortion legal theory that the USPS could not deliver drugs under the Comstock Act, an 1873 law that prohibited the distribution of “obscene” material, including abortion-related material, through the postal service.

This law, specifically the provision allowing the USPS to deliver abortion drugs, was successfully challenged in 1936 in a federal lawsuit initiated by Planned Parenthood founder Margaret Sanger.

Duane said that anti-abortionists used “marginal legal theory” to object to the mailing of abortion-inducing drugs.

“This law, which is over 100 years old, which has never been interpreted as doing anything other than prohibiting illegal activities, does not… prohibit the sale of medical abortion pills through the mail,” she said.

Like the FDA’s decision, the Justice Department’s opinion could give out-of-state or Texas patients receiving care in states where abortion is legal greater access to medication.

But the opinion explicitly states that the USPS can only deliver drugs to states where the drugs are legal, so this does not apply to Texas.

Even in states where abortion is legal, the ruling is non-binding, meaning the policy can still be challenged in court, which is highly likely.

The use of drugs on a large scale was challenged by the same opponents who successfully sued to abolish Caviar. A federal lawsuit filed in Amarillo late last year seeks to revoke a 22-year FDA approval of both mifepristone and misoprostol.

The case is being heard by a Trump-appointed federal judge who ruled last December that teens need parental consent to get birth control.

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