Texas lawmakers are gearing up to pass first-of-its kind legislation increasing penalties for mailing abortion medication after a federal appeals court issued a landmark defense of states’ authority to regulate the drugs.
A key item on Texas legislators’ agenda for Gov.
The bill’s supporters, including national organizations like Students for Life of America and Americans United for Life, are confident the legislation will pass after an appellate decision earlier this month defended a West Virginia law blocking access to the abortion-inducing drug mifepristone.
The legislation is part of a larger nationwide lobbying effort by anti-abortion groups, who say the US Food and Drug Administration has failed to monitor mifepristone’s safety. Demand for abortion medication by mail surged after the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning the constitutional right to abortion.
Should the legislation in Texas make it across the finish line, lawmakers elsewhere could try following their lead, opening states up to legal battles testing how far the restrictions can go to limit access to an FDA-approved medication and penalize health-care providers protected by shield laws in their own states.
“Even in a post-Dobbs world, the rate of abortion has not declined, and that’s because of mifepristone and the ability of people to be able to consult with a health-care provider in shield states and get the medication delivered to them,” said Kirsten Moore, director of the Expanding Medication Abortion Access, or EMAA, Project.
Ruling Motivates Legislators
The anti-abortion movement secured a win earlier this month when the US Court of Appeals for the Fourth Circuit ruled in a 2-1 decision that states have a role in shaping how mifepristone is used, and that Congress didn’t give sole regulatory power over the drug to the FDA.
“It bolsters our position that the states have a right to protect their citizens,” said Texas state Sen. Bryan Hughes (R). His legislation granting pathways for civil action against abortion pill distributors and providers passed in the Senate in April but failed to get through the House before the regular session ended. He plans to soon introduce an updated version for the special session.
The bill would also allow women and family members to file wrongful injury or death suits related to abortion pill use and allow the state attorney general to bring suits “on behalf of the children that were killed by the abortion pills,” said John Seago, president of Texas Right to Life, which is working with Hughes and state Rep. Jeff Leach (R) on the legislation.
The bill is based on legislation developed by Students for Life that has since been adopted as a model bill by the National Association of Christian Lawmakers. Lawmakers in Oklahoma, Indiana, Mississippi, and other states filed similar bills this year that failed to pass before the end of their legislative sessions.
Anti-abortion advocates say the legislation addresses what they see as a loophole by abortion providers to get around state bans.
In states like Texas, where abortion is completely banned with limited exceptions, patients are able to get abortion medication from organizations like Aid Access. The groups sends FDA-approved medication to patients in all 50 states through the mail from US-licensed pharmacies, according to the organization’s website.
As of the end of 2024, one in four abortions in the US was provided via telehealth, according to data from the Society for Family Planning. Nearly half of these were given by abortion providers in states with shield laws to patients living in states with bans or early gestational limits.
Safety, Shield Laws
Anti-abortion groups say limits on the distribution of medication abortion is necessary to protect patients’ safety. Abortion access advocates say that argument doesn’t hold water, citing studies indicating abortion via telehealth presents no added risks to patients.
“It’s a false narrative to claim that this bill is about the safety of pregnant people,” when “abortion pills themselves are medically extremely safe,” said Elisa Wells, co-founder of Plan C, an abortion pill information campaign.
Two studies published last year by the Journal of the American Medical Association and Nature Medicine found that out of hundreds of medication abortions provided through telehealth, less than 1% of patients experienced serious adverse events and there was no increased risk associated with mail-order dispensing.
Wells is also doubtful that any Texan could successfully litigate against abortion providers mailing the pills from California, New York, and six other states with laws protecting health professionals who prescribe pills via telehealth.
“All of these mechanisms that are currently set up and operational now are providing tens of thousands of pills each month into the restricted states, despite the bans and the legislative attempts to stop access,” Wells said.
New York is fighting a civil lawsuit from the Texas attorney general and criminal charges from Louisiana against a doctor for allegedly prescribing pills to patients in both states. New York Gov. Kathy Hochul (D) pledged to protect the doctor, and this year signed legislation allowing New York providers to omit their names from prescription labels for mifepristone and misoprostol.
California’s leaders have also committed to upholding protections for providers and patients. A Texas man filed a lawsuit this month against a California doctor for allegedly shipping abortion pills to his partner.
Sarah Zagorski, senior director of public relations and communications for Americans United for Life, said the organization isn’t deterred by state shield laws.
“The abortion industry has a long record of trying to protect themselves, and this is just in line with that to try to protect themselves from any kind of accountability or responsibility,” Zagorski said.
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