Even before the Supreme Court reversed Roe v. Wade last week, Republican-controlled states were already trying to restrict access to abortion pills. Among them was South Dakota, whose governor, Kristi Noem, vowed Sunday to go even further, now that the legal right to abortion in America has been overturned and left to states to decide. Noem told CBS that she brought a bill that would ban telemedicine appointments with abortion providers in order to prevent women from getting prescription abortion pills. “We don’t believe it should be available because it is a dangerous situation for an individual without being medically supervised by a physician,” Noem said. (Medication abortion—a two-drug regimen of mifepristone and misoprostol—has been determined safe and effective by the FDA, including when prescribed through telemedicine and sent by mail.) “Sounds like you’re ready to fight the Justice Department on that one,” said CBS’s Margaret Brennan.
A legal fight seems to be looming. It’s unclear whether states can actually ban the federally approved medication, as the Washington Post has noted, and the Biden administration made its view clear after the court’s decision last week. “We stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care,” Attorney General Merrick Garland said in a statement after the Supreme Court ruling, adding: “In particular, the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” The White House was even more explicit following the Supreme Court decision, saying in a statement that, “in the face of threats from state officials saying they will try to ban or severely restrict access to medication for reproductive health care,” President Joe Biden “directed the Secretary of Health and Human Services to identify all ways to ensure that mifepristone is as widely accessible as possible.”
Trigger laws banning almost all abortions, including medication abortions, either have already taken effect or soon will in 13 states since last week’s decision, NBC News reports. Amid the Biden administration’s vows to protect the right to medication abortion, it’s unclear “whether the FDA can preempt a state’s prohibition” on mifepristone, Wendy Parmet, director of Northeastern University’s Center for Health Policy and Law told NBC, noting that there isn’t a Supreme Court decision on the matter and, “even if we did, we have a Supreme Court willing to overturn decisions … everything is up for grabs at the moment.” Temple University’s Rachel Rebouché expressed similar uncertainty, telling Mother Jones the situation is “uncharted territory” and “an underdeveloped area of law, because most states don’t try to ban drugs that the FDA approved.”
Interest in medication abortion—which must be used within the first 10 weeks of pregnancy, and accounted for more than half of all U.S. abortions in 2020—is surging in the wake of the Roe reversal. “Abortion pill” was among the top Google queries on searches related to abortion, according to an Axios analysis of data from Friday and Saturday. “Searches for ‘abortion pill’ were highest in red states—Wyoming and Montana in the Mountain West were the top two, followed by Southeast states Louisiana, Georgia, Missouri and Arkansas,” Axios reports. The abortion-rights advocacy group Plan C told the Daily Beast that since the court’s ruling, more than 100 clinicians—including in states with trigger bans—have come forward asking how they can offering medication abortion to patients.