On March 30, the Food and Drug Administration issued regulations to ease labeling requirements on the so-called "abortion pill" mifepristone (formerly known as RU-486), which can be used by women to induce a miscarriage if done very early in their pregnancy. Increasing access to this drug is expected to markedly reduce the number of doctor's visits that women must make and to extend from 49 to 70 the number of days that women can access the drug. Reducing the number of doctor's visits needed is particularly valuable for those women who are poor and/or living in rural areas where there is more limited access to medical care nearby.
While the expanded access to this pill is a clear victory for those who are in the pro-choice camp, if those identifying as pro-life are indeed concerned about the health of women as they claim in working to impose constraints on abortion facilities (for example, with respect to admitting privileges and maintaining the standards of surgical centers), there would be an argument in favor of this FDA rules change to also being beneficial more broadly. After all, being able to terminate using this medication means that fewer women in early stages of pregnancy will need to undergo surgical procedures (which admittedly are still among the safest medical procedures if done in the first trimester), and is utilized by 1 in 4 women obtaining abortions because of that non-invasiveness. Thus, while expanding access to a less intrusive form of pregnancy termination, it is reducing the need (as opposed to access) for more involved procedures, with surgical abortions dropping by 75% in Ohio within the year after it passed legislation relaxing constraints on mifepristone. But of course that's not how the FDA decision is viewed.
Indeed, on March 30, Arizona Governor Doug Ducey signed into law a bill requiring that abortion clinics in Arizona follow the prior protocol that was in place as of December 31, 2015 with respect to the abortion pill, thus enforcing the more restrictive policy toward abortion access. Signing this, and two other anti-abortion bills, Ducey stated, "The right to life is fundamental, and these reforms are consistent with my track record of supporting common-sense initiatives that promote the health and safety of Arizonans and protect precious human life."
Acknowledging that his action was contrary to the new federal regulations, Ducey acknowledged that there may be some updating required given the recent federal action, with the legislation not scheduled to be in effect until summer 2016. However, the state is one of six -- along with Arkansas, Oklahoma, Ohio, North Dakota, and Texas -- which mandated adherence to the outdated FDA protocol to which doctors were generally not required to adhere. Courts have in some cases (Arizona, Arkansas, Oklahoma) viewed such legislation as providing unconstitutional barriers to women's access to abortion. (Planned Parenthood v. Casey (1992) stipulates that while constraints on abortion -- e.g., parental notification or waiting periods -- may be enacted, they cannot pose an "undue burden" on the woman, with legal debates surrounding what precisely constitutes such a burden).
If the concern for the health of the woman is the primary motivation underlying legislation in favor of restricting abortion access, then we should have a serious conversation about the public health risks and trade-offs. One should consider, for example, that the mortality associated with childbirth are 14 times higher than the risks associated with abortion. There should also be a more direct defense of enforcing the Arizona legislation despite the FDA's new regulations, considering that the FDA -- an agency within the Department of Health and Human Services -- underwent an evaluation of a Risk Evaluation and Management Study for the drug and receives comments on its rules from organizations with expertise and stakes in the matter, that it weighs in its decisionmaking.
As many political scientists have studied rigorously, one of the prime justifications for congressional delegation to administrative agencies is that legislators week to capitalize on agency expertise. Such arguments would suggest reason for deference to the FDA's evaluation of drug safety. If Arizona and other states seek to challenge the FDA's new rules on the matter, they may need to revise their claims of being motivated by desire to protect the health of women.
While the expanded access to this pill is a clear victory for those who are in the pro-choice camp, if those identifying as pro-life are indeed concerned about the health of women as they claim in working to impose constraints on abortion facilities (for example, with respect to admitting privileges and maintaining the standards of surgical centers), there would be an argument in favor of this FDA rules change to also being beneficial more broadly. After all, being able to terminate using this medication means that fewer women in early stages of pregnancy will need to undergo surgical procedures (which admittedly are still among the safest medical procedures if done in the first trimester), and is utilized by 1 in 4 women obtaining abortions because of that non-invasiveness. Thus, while expanding access to a less intrusive form of pregnancy termination, it is reducing the need (as opposed to access) for more involved procedures, with surgical abortions dropping by 75% in Ohio within the year after it passed legislation relaxing constraints on mifepristone. But of course that's not how the FDA decision is viewed.
Indeed, on March 30, Arizona Governor Doug Ducey signed into law a bill requiring that abortion clinics in Arizona follow the prior protocol that was in place as of December 31, 2015 with respect to the abortion pill, thus enforcing the more restrictive policy toward abortion access. Signing this, and two other anti-abortion bills, Ducey stated, "The right to life is fundamental, and these reforms are consistent with my track record of supporting common-sense initiatives that promote the health and safety of Arizonans and protect precious human life."
Acknowledging that his action was contrary to the new federal regulations, Ducey acknowledged that there may be some updating required given the recent federal action, with the legislation not scheduled to be in effect until summer 2016. However, the state is one of six -- along with Arkansas, Oklahoma, Ohio, North Dakota, and Texas -- which mandated adherence to the outdated FDA protocol to which doctors were generally not required to adhere. Courts have in some cases (Arizona, Arkansas, Oklahoma) viewed such legislation as providing unconstitutional barriers to women's access to abortion. (Planned Parenthood v. Casey (1992) stipulates that while constraints on abortion -- e.g., parental notification or waiting periods -- may be enacted, they cannot pose an "undue burden" on the woman, with legal debates surrounding what precisely constitutes such a burden).
If the concern for the health of the woman is the primary motivation underlying legislation in favor of restricting abortion access, then we should have a serious conversation about the public health risks and trade-offs. One should consider, for example, that the mortality associated with childbirth are 14 times higher than the risks associated with abortion. There should also be a more direct defense of enforcing the Arizona legislation despite the FDA's new regulations, considering that the FDA -- an agency within the Department of Health and Human Services -- underwent an evaluation of a Risk Evaluation and Management Study for the drug and receives comments on its rules from organizations with expertise and stakes in the matter, that it weighs in its decisionmaking.
As many political scientists have studied rigorously, one of the prime justifications for congressional delegation to administrative agencies is that legislators week to capitalize on agency expertise. Such arguments would suggest reason for deference to the FDA's evaluation of drug safety. If Arizona and other states seek to challenge the FDA's new rules on the matter, they may need to revise their claims of being motivated by desire to protect the health of women.
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