Working around Dobbs

This week, the Food & Drug Administration made a small legal change in its classification of the drug mifepristone, and the Department of Justice confirmed that the drug can be sent through the mail.

Mifepristone is a drug that can be used for the treatment of high blood sugar, but it can also be used off-label to inhibit the hormone progesterone, which is necessary for maintaining pregnancies. Along with another drug, misoprostol, which causes contractions, it can be used to medically induce abortions. The mifepristone-misoprostol combination is already used in over half of abortions performed in the United States, with demand only increasing since the Supreme Court adopted Christian fundamentalist theory crafting and revoked the right to abortion last June.

Mifepristone has been used in Europe since the 1980s (my generation called it “RU-486,” and every sex-ed teacher reminded us that it “does not prevent AIDS”). [...] But until now it had only been available in-person at a clinic or doctor’s office.

This week, the FDA abandoned that restriction and instituted a change that will allow the pill to be obtained at local pharmacies, or by mail, with an ordinary prescription.

  Elie Mystal @ The Nation

Assume GOP state legislatures will go to work to stop that ASAP, if they haven't already.

In forced-birth states, many of the bans targeting abortion providers also prohibit the use of abortion drugs like mifepristone. One challenge for the big-chain pharmacies that might carry the drugs, like CVS or Walgreens, is that they will likely need to have different rules for different states.

[...]

Part of the agreement with the drug’s manufacturers includes pharmacies’ not publishing the names of doctors who prescribe the medication, to protect those doctors’ safety. But that also means that pharmacies cannot list the names of prescribing doctors in their nationwide databases, which they commonly do. And that doesn’t even get into the threats that these companies might face if they provide the medication, including in states where it is legal.

Sounds like mail order will be the best way to get the drug.

The Office of Legal Counsel issued a memo at the request of the DOJ saying that shipping abortion medication through the mail is legal, even after the Supreme Court’s ruling in Dobbs. The memo related to a provision of the Comstock Act that prohibits the mailing of any “article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.” The Comstock Act was passed in 1873 at the behest of a self-styled anti-vice crusader named Anthony Comstock. It’s essentially an anti-“obscenity” law—because Comstock was one of those dudes who was willing to throw away freedom and liberty every time he saw an exposed nipple—but it has been regularly used by conservative forces to curtail access to abortion and contraceptive medications. The Comstock Act was once used to prevent the distribution of birth control pills, but it was defanged by the Supreme Court case that recognized a right to privacy and a right to contraception, Griswold v. Connecticut.

[...]

The OLC memo provides some cover to out-of-state activists who are trying to get medicine into the hands of those who need it.

[...]

No legal workaround can replace a constitutional right. Women and pregnant people will be at risk as long as the fundamentalist Supreme Court and Republican lawmakers are allowed to be in charge of reproductive health. But after decades of Republican politicians restricting abortion access and Democratic politicians failing to do enough to restore them, it feels like the Democrats have at least joined the battle.

I fully expect this Supreme Court to accept a lawsuit that will attack Griswold. 

UPDATE 1/11:  Alabama AG plans to prosecute women who use these pills under an Alabama chemical-endangerment law intended to protect children from meth lab fumes.