Wyoming becomes first state to outlaw abortion pills
March 18, 2023 Updated Sat., March 18, 2023 at 8:59 p.m.
Wyoming on Friday became the first state to ban the use of abortion pills, adding momentum to a growing push by conservative states and anti-abortion groups to target medication abortion, the method used in a majority of pregnancy terminations in the United States.
Wyoming’s new law comes as a preliminary ruling is expected soon by a Texas judge that could order the U.S. Food and Drug Administration to withdraw its approval of mifepristone, the first pill in the two-drug medication abortion regimen. Such a ruling, if it stands, could upend how abortion is provided nationally, affecting states where abortion is legal as well as states with bans and restrictions.
Legislation to ban or add restrictions on medication abortion has been introduced in several states this year, including a bill in Texas that would not only ban abortion pills but also require internet service providers to take steps to block medication abortion websites so people in Texas could not view them.
In these states, proposals to block or restrict abortion pills have typically been introduced along with other anti-abortion measures, a reflection of the range of obstacles to abortion these states have tried to erect since the Supreme Court overturned the national right to abortion in June.
Medication abortion is already outlawed in states that have total bans, since those bans already prohibit all forms of abortion. But Wyoming became the first state to outlaw the use of pills for abortion separate from a total ban.
Wyoming Gov. Mark Gordon, a Republican, signed that state’s abortion pill ban on the same day that he said he would allow another more sweeping measure banning abortion to become law without his signature. That law, which takes effect Sunday, would ban abortion under almost all circumstances, making it a felony to provide an abortion.
“I have acted without bias and after extensive prayer, to allow these bills to become law,” Gordon wrote in a letter to Wyoming’s secretary of state released Friday evening.
Gordon said in the letter that he withheld his signature from the broader abortion ban because he feared it would complicate matters in an ongoing legal battle over an earlier abortion ban passed by Wyoming legislators.
The broader ban outlaws medication abortion as well, and the measure that bans abortion pills would mostly have the effect of creating additional penalties for medication abortion providers.
Both laws are likely to be challenged quickly in court by abortion providers, who will seek to prevent the bans from taking effect while the legal challenge proceeds. A previously enacted abortion ban has so far been blocked by the courts after providers and others filed suit claiming that the law violated the Wyoming Constitution’s guarantee of freedom in health care decisions. The newly enacted abortion ban is an attempt to circumvent that constitutional provision by declaring that abortion is not health care.
Wyoming’s abortion pill law would take effect July 1 and would make it illegal to “prescribe, dispense, distribute, sell or use any drug for the purpose of procuring or performing an abortion.” Doctors or anyone else found guilty of violating this law would be charged with a misdemeanor, punishable by up to six months in prison and a $9,000 fine. The law explicitly says that pregnant patients will be exempt from charges and penalties.
Wyoming has only one clinic that provides abortions, Women’s Health & Family Care Clinic in Jackson. It provides only medication abortion, not the surgical procedure.
“The impact of that legislation not only infringes on our constitutional rights, it actually causes harm,” said Dr. Giovannina Anthony, an OB-GYN at the clinic. “Criminalizing evidence-based medicine is really what this boils down to, and that, in the end, honestly, will lead to maternal deaths and horrible outcomes for both mothers and babies.”
Anthony and other health providers are plaintiffs in a lawsuit against Wyoming’s previously enacted abortion ban, which the courts have blocked pending review by the Wyoming Supreme Court. On Friday, the same plaintiffs filed a request for a temporary restraining order to block the new broader abortion ban, since that ban would otherwise take effect right away. A hearing on that request is scheduled for Wednesday, and Anthony said she and the other plaintiffs will also be filing a court challenge to the medication abortion ban.
In the meantime, Anthony said, she will be canceling abortion appointments scheduled for Monday and Tuesday.
“The number of women who pursue abortion in a rural state like this is relatively few compared to more highly populated states, but it still is a very chilling effect on our obstetric care,” she said.
Earlier versions of the bill had named specific drugs: mifepristone and two brand-name versions of it, as well as misoprostol, the second drug used in the medication abortion regimen.
But doctors testified in objection, pointing out that misoprostol, in particular, had many other medical uses, including helping pregnant patients successfully give birth. The doctors raised concerns that pharmacists would be fearful of stocking any of the drugs, and some Republicans said names of abortion medications could simply be changed to get around the law. As a result, the final language was broadened to outlaw using any medication for abortion without mentioning specific drugs.
At least three other bills have been introduced in 2023 that seek to ban medication abortion. In Iowa, the bill did not make it to a vote before the legislative session ended, and in Hawaii, a Democratic state, the bill seems unlikely to succeed.
A bill introduced in Texas, a state that already bans abortion, includes many provisions that seek to close off any access to pills, including making it difficult for Texas patients to learn about or use abortion services outside of the state. The bill would make it illegal to manufacture, distribute or “provide an abortion-inducing drug in any manner to or from any person or location in this state.”
It would also make it illegal to “create, edit, upload, publish, host, maintain, or register a domain name for an internet website, platform, or other interactive computer service that assists or facilitates a person’s effort in obtaining an abortion-inducing drug.”
Many patients learn about abortion options from websites such as Plan C, a clearinghouse of information about medication abortion. And a growing number of patients in states with abortion bans are arranging to receive pills through telemedicine websites such as Aid Access, a European-based service that has pills shipped to any state from India, and Hey Jane, one of several American-based services that will provide pills to patients who travel to a state where abortion is legal and where they can receive the medication by mail in those states.
In addition to Wyoming and states with total abortion bans, 15 states have enacted restrictions on access to medication abortion, according to the Guttmacher Institute, a research group that supports abortion rights. Those restrictions range from requiring that the drugs be provided by a physician to requiring the patient have an in-person visit with a doctor. Several states, including Texas and Arizona, have outlawed the mailing of abortion pills, and bills to ban mailing pills have been introduced in at least three other states this year.
“We are seeing efforts to further bar access to medication abortion because abortion opponents recognize that even with abortion bans in effect,” patients are still able to obtain abortion pills, said Elizabeth Nash, state policy analyst for the Guttmacher Institute. “Now, abortion opponents have turned to the courts, attorneys general and state legislatures to further limit access to pills.”
Since January, when newly elected legislatures began to convene for the first time since the Dobbs v. Jackson Women’s Health Organization decision ended the national right to an abortion, more than 500 bills in states across the country have been proposed that are related to abortion.
Some states where Democratic legislatures have strong – or even unexpected – majorities are moving to strengthen abortion protections. In Minnesota, the first bill of the 2023 legislature, which made it harder for future legislatures and governors to water down those protections, was signed in January by Gov. Tim Walz, a Democrat. In Michigan, the legislature repealed an abortion ban, and Gov. Gretchen Whitmer, a Democrat, is expected to sign it.
But a majority of new bills aim to restrict abortion access. And with several states now wrapping up their legislative sessions, bills are starting to land on governors’ desks.
“These abortion bans should alarm everybody in every corner of our country,” said Mini Timmaraju, president of NARAL Pro-Choice America, which supports abortion rights. “This first-of-its-kind ban on medication abortion, as well as the total ban, are just the latest proof” of how far “anti-choice Republicans” will go to prohibit the procedure, she said.
Under the other new Wyoming law, the “Life Is a Human Right Act,” performing an abortion or administering abortion medication would be considered a felony, punishable by up to five years in prison, and doctors would have their licenses revoked. The law bans abortion with narrow exceptions for rape, incest and dire risks to the pregnant patient’s life or health.
“While other states are pushing an extreme abortion agenda, comparable to North Korea’s and China’s inhumane laws, Wyoming is a pro-life state, affirming that life is a human right and ensuring that women have real support,” said state Rep. Rachel Rodriguez-Williams, sponsor of the bill.
The law is intended to replace an existing ban, which is now on hold because of a legal challenge over its constitutionality. How that affects the actions of the Wyoming Supreme Court, though, remains to be seen.
At issue is the definition of health care: Under the Wyoming Constitution, residents have the right to make their own health care decisions. So, the new law stipulates that abortion is not health care.
“Instead of being health care, abortion is the intentional termination of the life of an unborn baby,” the new law states. “It is within the authority of the state of Wyoming to determine reasonable and necessary restrictions upon abortion, including its prohibition.”
This article originally appeared in The New York Times.
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