Attorneys general from Idaho, Kansas and Missouri wrote in a 32-page brief that allowing the mailing of mifepristone “encouraged and enabled private parties to evade the states’ laws" (Anna Moneymaker/Getty Images).Missouri’s attorney general has renewed a push to restrict access to the abortion pill mifepristone, arguing in a lawsuit filed this month that its availability hurt the state by decreasing teenage pregnancy.
The revised lawsuit was filed by Missouri Attorney General Andrew Bailey, alongside GOP attorneys general in Kansas and Idaho. It asks a judge in Texas to order the Federal Drug Administration to reinstate restrictions on mifepristone, one of two medications prescribed to induce chemical abortions.
The trio of attorneys general were forced to refile the litigation after the U.S. Supreme Court rejected the original lawsuit after concluding the original plaintiffs — a group of anti-abortion doctors and medical organizations — did not have standing to sue because they couldn’t show they had been harmed.
In making the case that the states have standing this time, the attorneys general contend access to mifepristone has lowered “birth rates for teenaged mothers,” arguing it contributes to causing a population loss for the states along with “diminishment of political representation and loss of federal funds.”
“Younger women are more likely to navigate online abortion finders or websites ordering mail-order medication to self-manage abortions,” the filing argues.
Missouri’s teen pregnancy birth rate has steadily declined over the past several years, according to the Centers for Disease Control and Prevention, though it still remains among the highest in the country.
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The lawsuit demands the federal government restore its previous restrictions on mifepristone by requiring three in-person doctor visits, reducing the gestational period during which the medication can be taken from 10 weeks to seven and rolling back recent federal policy that allowed for the mailing of mifepristone and allowed for prescriptions to be made online or through pharmacies.
In a statement to The Independent, Bailey framed the lawsuit as an attempt to ensure “long-standing safety requirements” for use of mifepristone are put back in place.
“We are moving forward undeterred for the safety of women across the country,” Bailey said.
Molly Meegan, chief legal officer and general counsel with the American College of Obstetricians and Gynecologists, said the latest legal attempt to reduce access to mifepristone is based on “out-of-date and unscientific federal restrictions.”
“Science has conclusively demonstrated that mifepristone is safe and effective, including when used as directed through telehealth, and that patients of any age who become pregnant and need medication abortion can safely use the combination regimen of mifepristone and misoprostol,” she said in a statement. ”Imposing needless barriers on mifepristone will make it harder for people to access this needed care—which of course is the point—and worsen existing health disparities.”
According to the FDA, mifepristone is safe to use if taken as directed. Cramping and bleeding are common side effects of the medication. Those prescribed mifepristone are urged to call their doctor if they experience heavy bleeding, abdominal pain or a fever. The same guidance applies to those who recently underwent surgical abortions, experienced miscarriages or delivered a baby.
Since the medication was approved for use 28 years ago, only 32 deaths have ever been reported associated with mifepristone, according to the FDA.
Bailey and his fellow GOP attorneys general, however, argue the drug is dangerous.
“The FDA has enabled online abortion providers to mail FDA-approved abortion drugs to women in states that regulate abortion — dispensing abortion drugs with no doctor care, no exam and no in-person follow-up care,” the attorneys general wrote in the amended lawsuit. “These dangerous drugs are now flooding states like Missouri and Idaho and sending women in these states to the emergency room.”
The filing also argues that the current regulations around mifepristone make it impossible to track and prevent medication abortions.
“All of this makes it difficult for state law enforcement to detect and deter state law violations and to give effect to state abortion laws,” the attorneys general wrote.
Lost revenue and fewer teen mothers
When the constitutional right to an abortion was overturned in June 2022, Missouri became the first state to enact a trigger law banning the procedure in all cases except for medical emergencies.
A decade ago, more than 5,000 abortions were performed in Missouri, according to data from the Missouri Department of Health and Senior Services. By 2020, that number dropped to 167 due to a series of “targeted regulation of abortion providers” laws enacted by the legislature, including a mandatory 72-hour waiting period between the initial appointment and a surgical abortion and mandatory pelvic exams for medication abortions.
Between June 2022 and March 2024, only 64 abortions were performed in Missouri under the state’s emergency exemption, according to health department data.
Despite these laws, thousands of Missourians have still accessed abortion in the past two years, either by driving to clinics in Illinois and Kansas or by ordering abortion medication through the mail.
In the six months after the Supreme Court’s abortion ruling, the number of self-managed medication abortions rose by more than 26,000 across the U.S. according to a study published in JAMA, the American Medical Association’s journal.
The attorneys general in their filing attempt to estimate how many people may have undergone medication abortions in each state, and how many may have been on Medicaid.
Between April 2018 and August 2023, there were 438 abortion complication reports — including 186 from medication abortions — filed with Missouri’s health department, according to the litigation.
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Bailey’s office estimates that just shy of 400,000 women and girls of reproductive age are eligible for Missouri Medicaid, and that about 13% of those individuals are enrolled in Medicaid.
Bailey raised these data points in an attempt to estimate how much abortion medication costs the state, noting that under the Emergency Medical Treatment and Active Labor Act, public hospitals must treat anyone who comes in for emergency care, regardless of their ability to pay.
“If a public hospital provides medical services for complications stemming from chemical abortions,” the filing reads, “and the state’s Medicaid program does not cover the full portion of the bill, the outstanding balance is a loss to the public hospital, which is itself an instrumentality of the state.”
The attorney general’s office also noted the “loss of potential population” that resulted from an increase in access to medication abortions among Missourians.
“Reflecting the ease of driving to another state to receive abortion drugs, it is estimated that just 2.4%of abortion-minded women were prevented from getting abortions in Missouri after Dobbs,” the attorneys general write in the filing.
Fewer abortions would have occurred, the attorneys general argue, if the FDA’s previous requirements were still in place.
Bailey made a similar argument last year while attempting to inflate the estimated cost of an abortion-rights ballot measure, saying it would cost the state $6.9 trillion in lost revenue. A judge rejected his claim.
The filing also pointed to a November 2023 study that found abortion bans didn’t result in an increase in teenage pregnancies that ended in births for those between the ages of 15 and 19.
The study attributed this in part to young people’s ability to find online abortion medication providers.
“This study thus suggests that remote dispensing of abortion drugs by mail, common carrier, and interactive computer service is depressing expected birth rates for teenaged mothers in Plaintiff States, even if other overall birth rates may have been lower than otherwise was projected,” the attorneys general wrote.
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