At the 50th anniversary of Roe v Wade, the nation is seeking new legal frontiers to safeguard reproductive freedoms. In Dobbs v Jackson Women’s Health Organization, the Supreme Court overturned the landmark ruling, thus eliminating a national right to abortion before viability. Key federal strategies to address this ruling include expanding access to medication abortions and emergency abortion services. Federal conscience protections for health workers balance nondiscriminatory access to abortion services. Ballot initiatives and courts are seeking to protect reproductive rights under state constitutions. At stake is whether pregnant people can access essential services, with significant consequences for autonomy, dignity, health, and emotional well-being.
To mark Roe v Wade’s 50th anniversary, President Biden signed a memorandum to ensure safe access to medication abortion—a 2-drug regimen of mifepristone and misoprostol for pregnancy termination during the first 10 weeks. The Biden administration will issue new guidance to patients, clinicians, and pharmacies to legally access, prescribe, or provide mifepristone as well as reduce barriers to access.1
US Food and Drug Administration
In January 2023, the US Food and Drug Administration (FDA) modified its Risk Evaluation and Mitigation Strategy (REMS) to allow retail pharmacies to dispense mifepristone.2 Previously, mifepristone could be dispensed only in certain clinics, medical offices, and hospitals.2 The revised FDA rules allow certified retail pharmacies to dispense mifepristone with a clinician’s prescription.2 (Pharmacies can already dispense misoprostol.) The FDA also formally removed the in-person dispensing requirement, allowing clinicians to prescribe mifepristone remotely and dispensed by mail.2 The new REMS will increase access to abortion medication in all states, including to out-of-state care where abortion is restricted. Several states, moreover, are planning to enact “shield” laws affording legal protection to clinicians who prescribe abortion medications through telemedicine to patients in states that restrict abortions.
In December 2022, the Department of Justice (DOJ) at the request of the US Postal Service (USPS) issued guidance clarifying the lawfulness of sending abortion medications through the USPS.3 An 1873 federal law (the Comstack Act) prohibits mailing any “article or thing designed, adapted, or intended for producing abortion.”4 The DOJ determined that the Comstack Act does not prohibit mailing, delivery, or receipt by mail of mifepristone or misoprostol because the sender cannot know if the drug will be used unlawfully.3 All states permit abortions to save the pregnant person’s life and many permit abortions in cases of rape or incest, even though exceptions are rarely granted in practice. Additionally, there are varying gestation limits, so abortion medication may be taken within those permissible limits. The DOJ’s memorandum will protect clinicians and pregnant persons from federal liability in sending or receiving abortion medication by mail.
The Biden administration also has vigorously defended access to abortion medications. In a recent lawsuit challenging the FDA’s approval of mifepristone on safety grounds, the FDA (as defendant) stressed that the “public interest would be dramatically harmed by effectively withdrawing from the marketplace a safe and effective drug.”5 The lawsuit is unlikely to prevail, given decades of robust evidence regarding mifepristone’s safety, the FDA’s reputation for evidence-based drug approvals, and courts’ historical deference to the FDA’s scientific determinations.
The DOJ also suggested it might challenge state bans on abortion medications based on the FDA’s power to set national uniform standards for medication approvals. From a policy perspective, if states could pick and choose which FDA-approved medications they would, or would not, allow, it would cause considerable harm. Yet DOJ challenges to state bans on abortion medication might not succeed, given states’ primary responsibility for regulating the practice of medicine, as well as pharmacies.
The Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals that receive Medicare funds to provide stabilizing treatment to patients experiencing a medical emergency.6 Urgent medical treatment should extend both to saving life and preserving health. In July 2022, the Centers for Medicare & Medicaid Services (CMS) issued guidance stating that EMTALA requires abortion services wherever necessary to stabilize a pregnant patient experiencing an “emergency medical condition.”6 The CMS concluded that EMTALA preempts contrary state laws banning or restricting abortions under urgent circumstances.6
The DOJ also interprets EMTALA as requiring abortions to save the life or preserve the health of a pregnant person in emergency health care settings. In August 2022, the DOJ challenged Idaho’s near-total abortion ban. Idaho’s ban contains exceptions to protect the pregnant person’s life (but not health) and in cases of rape or incest, but only as an affirmative defense. That means the physician must first face prosecution and use an exception as a defense. Exposing clinicians to criminal prosecution could interfere with a physician’s ethical duty of care. A federal district court granted a preliminary injunction temporarily prohibiting enforcement of Idaho’s ban on abortions provided in emergency situations.
In December 2022, the Department of Health and Human Services (HHS) Office for Civil Rights proposed a new rule for health workers and entities that refuse to provide abortion or other services for religious or moral reasons. HHS conscience rules were established in 2008 to enforce 3 federal laws designed to protect health workers and entities who refuse to participate in patients’ medical care based on religious or moral grounds.7 In 2017, the Trump administration expanded conscience protections and created an HHS office to “more vigorously and effectively enforce” the rule. In 2019, the HHS further enhanced compliance mechanisms and significantly expanded the individuals, entities, and activities covered by conscience protection.7 Three federal district courts struck down the 2019 rule, which therefore reinstated a 2011 Obama rule.
The Biden administration’s proposed rule would strike a balance between “safeguarding conscience rights and protecting access to health care.”8 Marginalized, disadvantaged, and underserved communities, including LGBTQ+ patients, persons with disabilities, and persons living with HIV, are disproportionately affected by conscience protections. The proposed rule should better protect patients’ autonomy, health, and dignity, while also respecting clinicians’ moral and religious convictions.
In August 2022, civil society organizations filed a federal class-action lawsuit to block enforcement of Texas’ prohibitions on aiding a pregnant person in obtaining an abortion in another state.9 In response to state abortion bans, individuals and organizations have offered funding, support networks, and logistical assistance to pregnant people seeking abortions outside the state. Texas Attorney General guidance in the wake of Dobbs places individuals and organizations at risk of criminal and civil liability, which violates rights to free expression and interstate travel.9 At stake in the class action lawsuit is whether pregnant persons can get needed assistance in obtaining abortions outside their home state, as well as the legality of extraterritorial enforcement of abortion bans.
State Constitutional Rights to Abortion
In the 2022 midterm elections, California, Michigan, and Vermont became the first states to establish a right to abortion in their constitutions. Voters passed ballot initiatives to guarantee the state constitutional right to “reproductive freedom” or “reproductive autonomy,” including abortion. Even after Dobbs, state courts still retain the power to protect abortion services under state constitutions. Ballot initiatives can express the will of voters to enshrine reasonable protections for abortion services. Given that 17 states allow citizens to propose these types of ballot initiatives and most of these states currently ban or restrict abortion access, additional ballot measures will likely emerge in the 2024 election.
State courts going back to the 1980s have interpreted state constitutions to protect abortion rights and strike down abortion bans. Since Dobbs, state courts have heard challenges to abortion bans in at least 18 states (see the eTable in the Supplement).10 Most judicial challenges to state abortion laws are based on the constitutional rights to equal protection, privacy, bodily autonomy, liberty, religious liberty, or health. Since July 2022, courts in 9 states have either temporarily or permanently blocked enforcement of state abortion bans on 1 or more of these grounds.10
Innovative legal strategies for safeguarding reproductive freedoms after Dobbs will be socially and politically contested. However, they are a crucial component to advancing pregnant people’s autonomy, dignity, health, and emotional well-being in the context of the new legal frontiers in the nation’s long-running abortion debates.
Corresponding Author: Lawrence O. Gostin, JD, O’Neill Institute for National and Global Health Law, Georgetown University, Washington, DC (gostin@georgetown.edu).
Published Online: January 30, 2023. doi:10.1001/jama.2023.1004
Conflict of Interest Disclosures: None reported.
4.Comstock Act, 18 USC §1461 (1873).
8. Safeguarding the rights of conscience as protected by federal statutes.
Fed Regist. 2023;88(3):820-830.
Google Scholar 9.Fund Texas Choice et al v Paxton et al, 566 F Supp3d 605 (WD Tex 2022).