The revived abortion law in Georgia places a new strain on people who turn to drugs to terminate pregnancies and contributes to an ongoing battle over state-federal boundaries.
The Eleventh Circuit’s decision to have Georgia ban abortions after a fetal heartbeat was detected creates a thorny situation for people who rely on mifepristone — a drug long ago approved by the Food and Drug Administration to treat pregnancies up to 10 weeks to finish. Many Georgians are now effectively barred from using the drug after the sixth week of pregnancy, despite FDA regulations allowing that time frame, lawyers say.
“It’s really going to limit the ability of Georgians to have an abortion of any kind,” said Rachel Rebouche, interim dean at Temple University’s Beasley School of Law.
Local officials, courts, advocacy groups and attorneys are struggling to make sense of an increasingly complicated post-Roe legal landscape, where access to pregnancy termination services varies from state to state. Legal experts say the U.S. Eleventh Circuit Court of Appeals decision represents the latest obstacle to people hoping to use drugs to terminate a pregnancy.
“Medication-related abortion before six weeks is still legal. This is of course a very tight timeframe,” said Rebouche. “You should essentially know you’re pregnant right away.”
“Playing games with people’s lives”
In overturning the lower court’s injunction, the Eleventh Circuit took the unusual step of allowing Georgia’s abortion ban to go into effect immediately, rather than waiting the usual 28 days for enforcement.
Georgia residents who already have abortion plans are now being placed in an “unnecessarily complicated situation,” said Kirsten Moore, director of the Expanding Medication Abortion Access Project.
“If you’re going to be seven weeks and a day at the time of this visit, you need to put that aside now and figure out how to get to another provider in another state,” Moore said. “The courts and the politicians play with people’s lives.”
The ruling will make it even harder for people who want a medical abortion, which accounted for about 42% of all abortions in the United States in 2019, according to the Centers for Disease Control and Prevention.
A federal district court in Mississippi is currently considering access to mifepristone in a case that could impact statewide access. GenBioPro — the maker of a generic version of mifepristone — is urging a federal judge to rule that the FDA’s prescribing and dispensing rules outweigh Mississippi’s stricter requirements.
A GenBioPro win could open the door to separate preemption lawsuits over abortion laws in Georgia and other states. But Georgia residents looking for mifepristone after the six-week hiatus may be left with options given the current climate.
“If a state can ban abortion, like Georgia is doing here, then so does all abortion,” said Greer Donley, an assistant professor of law in the University of Pittsburgh School of Law. “Most states do not define it by any particular means, but by any means of terminating the pregnancy.”
Often, state abortion bans would not prosecute a pregnant person, Donley said, leaving “a certain loophole” for someone using an abortion pill. However, this is far from “a purely risk-free activity” as states can use other laws to prosecute users of the pills, such as: B. Fetus or Child Abuse Laws.
question of enforcement
The extent of the impact on patients may depend on how far Georgian officials go in enforcing the state’s ban on abortion.
“States have not been very successful in stopping this use, possession and distribution of other prohibited substances,” said Wendy Parmet, director of Northeastern University’s Center for Health Policy and Law. “I doubt they’ll really be able to stop using it.”
It’s unclear whether states want to build “the kind of policing surveillance state that would be necessary” to restrict access to pills, Parmet said. From a legal standpoint, however, the Eleventh Circuit’s opinion suggests that convincing some courts that FDA regulations pre-empt state restrictions will be difficult, raising a host of new questions in the process.
“Can the state prohibit interstate importation? Can the state take action against out-of-states that ship abortion drugs into a state? Parmet asked.
“We are in the first phase of a tsunami of litigation,” she said.
