The U.S. Supreme Court, by overruling Roe v. Wade, sought to “return the issue of abortion to the people’s elected representatives.” Following the court’s decision, skirmishes have been fought in state courts over whether state pro-life laws are valid under state constitutions. What is emerging now, however, is an effort by the federal government, in league with states that support abortion and the abortion industry, to cynically rebrand abortion as “health care” and to knit together a national pill-based abortion market that renders state pro-life laws ineffective. This approach is both dishonest and dangerous to women.
According to the federal government, abortion is no longer a regrettable procedure that should be “safe, legal, and rare” — it’s “health care.” The Department of Health and Human Services (HHS) recently released an online bulletin advising women that abortion “is an essential part of your health and well-being.” The U.S. Department of Justice vowed to “protect healthcare providers and individuals seeking reproductive health services.” Even President Biden joined the rebranding campaign, issuing an executive order defining “reproductive healthcare services” as “services relating to pregnancy or the termination of pregnancy.”
Calling abortion “health care” is deeply dishonest. Abortion does not treat a disease; it disrupts a normal and healthy biological process by killing an unborn human. As the Alliance for Hippocratic Medicine puts it, abortion “is an action whose sole intent is to end” a human life, and as such it “clearly violates the basic tenets of medical ethics.”
Having rebranded abortion, its advocates are determined to deliver their new version of health care to women in the form of abortion pills prescribed online and sent through the mail. On July 8, President Biden issued Executive Order 14,076 calling on HHS Secretary Xavier Becerra to identify potential actions to, “protect and expand access to abortion care, including medication abortion.” “Medication abortion,” of course, is a euphemism for pill-induced chemical abortions, typically via mifepristone (RU-486).
In announcing this move, the White House stated that its action would “build on the steps the Secretary of HHS has already taken at the President’s direction following the decision to ensure that medication abortion is as widely accessible as possible.” The “steps already taken” include stripping away the in-person dispensing requirement for mifepristone previously in place under Food and Drug Administration’s (FDA) Risk Evaluation and Mitigation Strategy (REMS) drug safety program for medications with recognized serious safety concerns. As a result, HHS has assured that federal regulations permit chemical abortion drugs “to be dispensed by telehealth and sent by mail via certified prescribers and pharmacies.”
In response to Biden’s executive order, HHS issued a guidance document on July 13, advising pharmacies that federal law prohibits them from discriminating against pregnant women, which “includes their ability to access reproductive health care, including prescription medicine from their pharmacy.” Among the medications specifically mentioned in the guidance is mifepristone. Attorney General Merrick Garland followed this with a declaration that “States may not ban Mifepristone based on disagreement with the FDA’s expert judgment.”
The upshot of these moves is that the Biden administration has made it federal policy to make chemical abortions as widely available as possible by stripping away in-person dispensing requirements for mifepristone and telling pharmacies they could face liability for refusing to distribute it.
Chemical abortion “health care” is deadly to unborn babies, of course. But abortion advocates’ reckless goal to rebrand and rapidly expand chemical abortion on demand also threatens to harm thousands of women. Research has shown that chemical abortions have a complication rate four times that of first trimester surgical abortions.
Moreover, potentially life-threatening complications become more common when mifepristone is used more than 10 weeks into pregnancy.Yet many women misestimate the stage of their pregnancies. And use of mifepristone can be particularly hazardous with ectopic pregnancies. For those reasons, the American Association of Pro-Life Obstetricians and Gynecologists warns that an “in-person visit is medically necessary and sound medical practice because it ensures that every woman receives a full evaluation for any contraindications to a medication abortion.”
This leads to the Biden administration’s most cynical move of all: reinterpreting the Emergency Medical Treatment and Labor Act (EMTALA) (the federal “antidumping” statute that requires emergency rooms not to refuse care to uninsured patients experiencing “emergency medical conditions” ) to require abortions. The EMTALA guidance was framed as necessary to prevent doctors from refusing to treat true emergencies, like ectopic pregnancies and miscarriages. But doctors have long treated those emergency conditions and pro-life laws don’t change that. Texas law, for instance, excludes miscarriage and removal of an ectopic pregnancy from its definition of abortion. So did Planned Parenthood — until it edited its website shortly after the EMTALA guidance was released.
The true contribution of the EMTALA guidance to the emerging chemical abortion economy comes in its requirement that emergency rooms treat an “incomplete medical abortion” as within its scope. That requirement provides a dark backstop for the thousands of women who will seek mifepristone through telehealth, online or via mail order, and who inevitably will experience botched chemical abortions. The guidance tells emergency room doctors to “finish the job.” Tragically, even in cases where the unborn baby likely could be saved.
Each component of the federal government’s effort – from rebranding abortion to interpreting federal law to force a national chemical abortion market into existence – rests on shaky logical and legal grounds. Parts of it already are being contested in court, including by my firm, Alliance Defending Freedom. Opposing those efforts is imperative if women’s health (not misnamed and deadly federal “health care”) truly is to be protected and the people’s elected representatives are finally to have a voice.
Ryan Bangert is senior counsel with Alliance Defending Freedom (@ADFLegal).