Expanding access to abortion

MARY REICHARD, HOST: It’s Thursday the 12th of January, 2023.

You’re listening to The World and Everything in It and we’re so glad you’ve joined us today! Good morning, I’m Mary Reichard.

MYRNA BROWN, HOST: And I’m Myrna Brown. First up: the Biden administration makes moves to expand the availability of the abortion pill in the United States.

WORLD’s life beat reporter Leah Savas is here to talk us through these developments.

REICHARD: Welcome, Leah.

LEAH SAVAS, REPORTER: Thanks, I’m glad to be here.

REICHARD: Leah, what changes are we talking about with regard to the abortion pill?

SAVAS: Well, the first one came out of the FDA, the Food and Drug Administration. Over a year ago, the FDA said it would get rid of a longstanding requirement that abortionists had to give out the abortion drug mifepristone to women in person. Since then, some online pharmacies have been filling prescriptions and shipping out the drug. Last week’s change officially removes that in-person requirement. And it removes a part of the mifepristone guidelines that prohibited retail pharmacies from dispensing the drug, which is basically an open invitation to companies like Walgreens and CVS to enter the abortion business. And in fact those two pharmacy companies have already announced their plans to pursue certification.

REICHARD: What was the purpose of that in-person requirement?

SAVAS: Mifepristone is the first of two drugs used in chemical abortions, and the FDA first approved it for use in the United States. in 2000 with certain rules. The most important one required abortionists to give the drug out in person. The reason for that was to ensure that the woman wouldn’t be taking it too late in pregnancy and to make sure she didn’t have an ectopic pregnancy—both of which would be dangerous to the woman. Other reasons would include making sure the woman wasn’t being forced into the abortion. Things like that.

REICHARD: So physical safety and coercion. Back to the original question, what was the Biden administration’s other big move last week on the abortion issue?

SAVAS: A few hours after the FDA published its rule change, the Department of Justice released a memo responding to an earlier inquiry from the U.S. Postal Service. The postal service had asked the Justice Department a question about a particular federal law that—if you interpret it literally—prohibits mailing drugs used for abortion. Justice sent a memo that is essentially a 20-page workaround of that law with lots of references to past court cases regarding the mailing of contraceptive devices and drugs. The memo’s main takeaway is that, based on these court cases, the law only makes sending contraceptive or abortive drugs in the mail illegal if the sender intends that the recipient use the drugs illegally. Now, abortion groups have already been sending abortion pills through the mail, but I know of no attempt so far to enforce that law. Obviously if you read the law literally, you won’t agree with this opinion. But it gives the greenlight for mail order abortions to continue.

REICHARD: What does that memo mean for the different parties involved in getting the abortion pill into someone’s mailbox?

SAVAS: From a federal perspective, it gives a greenlight to the post office to feel free to deliver abortive drugs without having to worry about the federal government penalizing them under this law. A footnote also mentions that this applies to express carriers like FedEx and UPS. That means that they don’t have to worry about breaking this federal law if they also deliver abortion pills.

REICHARD: That’s the federal perspective. What about the state perspective?

SAVAS: From a state-level perspective, it seems that shipping companies like FedEx and UPS should still be concerned about delivering abortion pills in states that prohibit abortions or just mailing abortion pills. And so should the groups sending the abortion pill into those states, because they’d be breaking state laws. But in a footnote the memo says that the doctrine of intergovernmental immunity would protect postal workers—because they’re federal employees—from facing charges under state pro-life laws because they’re fulfilling duties under federal law. So while it doesn’t exactly open up the floodgates for abortion pills to enter pro-life states, it does give a bit of an “in” for groups that want to make that happen.

REICHARD: The FDA and Justice Department made moves on the same day. Any significance to that?

SAVAS: I talked to some legal experts about this, and they saw the timing as a way to help pharmacies feel more comfortable about getting certified. The new pharmacy agreement form requires that pharmacies that want to be certified to dispense the abortion pill need to be able to ship them using a shipping service that provides tracking information. So this Justice Department opinion is a signal to these companies that, if they pursue certification, they don’t need to be worried about the federal law that technically prohibits shipping abortive drugs.

REICHARD: How are pro-life groups responding to these changes?

SAVAS: Pro-lifers I’ve spoken with are frustrated. To them, this is just the Biden administration pushing a pro-abortion agenda. One pro-lifer I spoke with said that he’s encouraging 40 Days for Life to move their prayer vigils outside of Walgreens and CVS pharmacies. Another pro-life group is already planning to hold protests outside of these pharmacies.

REICHARD: Leah, which development is most concerning?

SAVAS: To the folks I talked to, the FDA rule change is the most concerning because it’s largely a cultural shift and will just normalize the abortion pill in people’s minds because—well—the drug store down the street carries it. The Justice Department opinion is also disturbing to them, but they thought the legal reasoning was atrocious and unlikely to hold up in a court battle. It’s also easier for a future administration to change or for a court to contradict. So if these companies are wise, they won’t just jump right in and get certified and start mailing the abortion pill right away. They’ll have to look at their potential liability under federal law and state laws. So let’s hope they take their time and eventually decide abortion not a good business for them to be a part of.

REICHARD: Leah Savas is WORLD’s reporter on the life beat. Thanks for talking through these changes with us, Leah.

SAVAS: Glad to help.

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