What can the FDA do about bodily autonomy?

By: Alliya Dulaney

It has been a little over 100 days since Roe v. Wade was overturned. In that time, reproductive rights have changed from a blanket of federal protection to a kaleidoscope of state rights. 

On October 7, The Arizona Court of Appeals granted Planned Parenthood’s request for an emergency stay from a September 23 ruling by Judge Kellie Johnson of Pima County Superior Court. This grant provides temporary relief for Arizonan’s by suspending a pre-statehood law written in 1864 and codified in 1901. Known as ARS 13-3603, this law instructs a two-to-five-year sentence for anyone who provides or assists a pregnant person in obtaining an abortion except in medical emergencies. 

With Arizona, and even the nation, adjusting to the reversal of a fifty-year precedent, the post-Roe era continues to unravel new questions and concerns such as the future of medical abortion. 

Medical abortion, also known as medication abortion, is a nonsurgical method that uses a drug to terminate a pregnancy at up to eleven weeks of gestation. This process generally requires a regimen of two drugs, mifepristone, followed by misoprostol twenty-four to forty-eight hours later. Because of its non-invasive nature, the medical abortion regimen can be done in the comfort of one’s home, promoting accessibility to patients unable to go to a clinic or those wanting to maintain privacy. As of 2020, medical abortion accounts for 54% of US abortions. 

In response to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, Attorney General Merrick Garland announced in a statement that states cannot ban mifepristone because of FDA disagreement. Known as federal preemption, the Constitution’s Supremacy Clause preempts state law when federal law and state law differ. 

Despite the FDA removing the in-person requirement of dispensing mifepristone—which now allows for broader services via telehealth, and distributing such drugs through pharmacies and certified clinics—some states have attempted to limit access to mifepristone by limiting medical practice. Thirty-two states limit the distribution of mifepristone to only licensed physicians. Six states, including Arizona, have banned telehealth relating to abortion services. Fourteen states require the presence of a physician when administering mifepristone. Mississippi requires a twenty-four-hour waiting period before administering mifepristone. Texas requires physicians to only administer mifepristone before the seven-week gestation mark.  

Despite the FDA authorizing the safety and effectiveness of mifepristone in 2000, and misoprostol in 2016 as a drug used in combination with mifepristone, Texas lists mifepristone as a drug that increases complications of gestation, invalidating the safety of the drug, and thus the agency which authorized it. 

It is important to note that the question of federal preemption does not just relate to medical abortions. The debate on FDA authorization and state laws differing on bodily autonomy also call attention to gender-affirming care. 

Gender-affirming care, comprised of social, psychological, behavioral, and medical interventions aims to help youth understand their gender identity. Included within gender-affirming care are hormone-related treatments, which are designed to delay puberty or enhance certain physical characteristics. Currently, the FDA has not approved any puberty-blocker. 

The lack of FDA authorization thus has resulted in various states, so far fifteen, that have or are attempting to restrict access to gender-affirming care. Some state bills aim to criminalize providers who assist a patient in receiving hormone-related treatments, while also penalizing parents. Other various bills include preventing insurance from covering such treatment and labeling the facilitation of hormone treatment as “child abuse.”

The future of gender-affirming care could be dependent on the outcome of FDA-authorized treatments like medical abortion. Decisions relating to medical abortion could impact how and if gender-affirming care like hormone-related treatments can be more accessible to individuals through preemption.

Access to safe abortions is no longer a known right for millions of Americans. As tensions deepen between states and the FDA, the availability of medical abortion will continue to vary among states. Such state actions will further question and possibly redefine the relationship between federal and state law. Amid this debate, individuals seeking a safe abortion will continue to grapple in the game of knowing what rights are available to them, and in quite likely in immediate and unfortunate circumstances, if they can afford to travel elsewhere. 

This continued frustration of walking in the dark has only just begun. As the Dobbs decision proceeds to trickle down to the rights of individuals in various facets of the law, it seems all we can do is wait. 

Alliya graduated from Northern Arizona University with a B.S. in Journalism and a minor in Mandarin. She is a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Alliya is interested in government and public policy and international human rights. When not in law school, Alliya enjoys trying new recipes and gardening.