The federal government this week announced two initiatives that aim to expand access to medication abortions early on in a pregnancy, but they will have little impact on patients in Texas.
A ruling by the Food and Drug Administration and a nonbinding opinion from the Department of Justice could make it easier for patients to obtain misoprostol and mifepristone through the mail and at pharmacies. The drugs, typically taken in tandem, account for half of all abortions in the U.S., but Texas' ban on abortion negates in-state access to them.
FDA decision
A revised rule from the FDA this week allows major pharmacies like CVS and Walgreens to fulfill prescriptions of mifepristone, specifically. Prior to the pandemic, the medication had to be prescribed by a qualifying physician and obtained through them. The rule also cements a previous decision by the FDA to allow physicians to prescribe the drug in a telehealth setting. That provision is a pandemic-era policy that's been in effect since April 2021.
As NPR points out, Walgreens has said it intends to pursue certification to distribute the drug, and CVS said it was looking into doing the same in states that don't restrict medication abortion.
Texas is not one of those states.
In 2021, state lawmakers approved two measures that effectively banned access to abortion — one ban on abortion after about six weeks of pregnancy and another that restricted access to misoprostol and mifepristone. And a so-called trigger law banning virtually all abortions went into effect last year after the U.S. Supreme Court overturned federal protections under Roe v. Wade in June.
In light of those restrictions, the FDA's rule does "nothing" for Texas patients, said Molly Duane, a senior staff attorney for the Center for Reproductive Rights.
"Really this is about making telemedicine more accessible and available for patients, which will undoubtedly ... reduce some of the barriers in states where abortion is legal," she said. "But ... it does nothing to address the fact that the provision of medication abortion pills — regardless of who prescribes them and where — is completely illegal in states like Texas."
Texas is one of 13 states that have banned most abortion-related care. Texas’ ban doesn’t allow exceptions in instances of rape or incest.
That has led a flood of patients to go out of state to receive care. As Houston Public Media reports, this FDA decision could boost access for potential Texas patients to receive an out-of-state telehealth visit with a qualified physician in Colorado or New Mexico. They could then travel to that state to pick up medication at a pharmacy.
Department of Justice opinion
Earlier this week, the Department of Justice also pushed to protect access to abortion-inducing drugs. In a nonbinding opinion, the DOJ empowered the U.S. Postal Service to deliver mifepristone and misoprostol to patients. It's considered a victory for abortion rights advocates, but doesn't absolutely guarantee legal protections.
Duane said the opinion pushes back against the anti-abortion legal theory that USPS couldn't deliver the drugs under the Comstock Act, an 1873 law that banned dissemination of "obscene" material — including abortion-related material — through the postal service.
That law, specifically the provision allowing USPS to deliver abortion medication, was successfully challenged in 1936 in a federal lawsuit spurred by Planned Parenthood founder Margaret Sanger.
Duane said abortion opponents have used a "fringe legal theory" to argue against mailing abortion-inducing drugs.
“This 100-plus-year-old law that has never been interpreted to do anything other than prohibit illegal activity does not … prohibit the sale of medication abortion pills through the mail," she said.
Like the FDA ruling, the DOJ opinion could provide out-of-state patients — or Texas patients receiving care in states where abortion is legal — more access to the drugs.
But the opinion explicitly states the USPS can only deliver the drugs in states in which the medications are legal, so it wouldn't apply to Texas.
Even in states in which abortion is legal, it's a nonbinding opinion, meaning the policy could still be challenged in court, which is very much a possibility.
The use of the drugs writ large has been challenged by the same opponents who successfully sued to overturn Roe. A federal lawsuit filed in Amarillo late last year seeks to undo the FDA's 22-year-old approval of both mifepristone and misoprostol.
That case is being heard by a Trump-appointed federal judge who ruled last December that teens needed parental consent in order to get contraception.
The Texas Newsroom’s Sergio Martínez-Beltrán contributed reporting to this story.
