SC 6-week abortion ban collides with uncertain future of abortion pill, concerning some advocates

An uncertain future for a widely prescribed abortion drug that’s embroiled in federal legal challenges begs new questions in South Carolina, a state that recently severely narrowed the window for legal abortions.

Mifepristone — not to be confused with the “day after pill,” or Plan B — has been used as a safe and effective method of abortion for some 23 years. It is taken in conjunction with misoprostol, a medication that induces contractions but is also used to treat ulcers, according to Planned Parenthood. Mifepristone is currently available by prescription. It can be prescribed by telemedicine and delivered through the mail.

As of now, the pill is still as accessible in South Carolina and other states where abortion is legal as it was before the recent legal challenge arose. But if the U.S. Supreme Court takes up the matter of the pill, it’s possible the mostly conservative justices could rule to allow restrictions on the federally regulated drug.

If that happens, some abortion-rights advocates in South Carolina worry women could have even less access to abortion or that state policymakers, emboldened by their recent success in passing new abortion restrictions, could turn their eyes toward the pill in this state.

“There’s no limit to what they can try to criminalize,” said S.C. Rep. Heather Bauer, a Richland County Democrat who opposed legislation that eventually passed this year to ban abortions after six weeks. “Anything is possible with these folks who don’t trust women and think they know better.”

Medicated abortion wasn’t specifically discussed in the state’s previous legislative session when the six-week ban was passed, Bauer said. But she said she doesn’t doubt whether it’s on anti-abortion lawmakers’ minds or hasn’t been discussed outside of session before.

“I think that they see no limit to controlling our bodies. I think anything is at play, including birth control,” Bauer added.

Abortion via medication is the most common method for abortions in the U.S., and mifepristone can be used up until 10 weeks of pregnancy under current regulation. Mifepristone and misoprostol taken together have been found to effectively end pregnancies about 98% of the time, according to a report by the Washington Post.

The federal legal battle against mifepristone started after Roe v. Wade was overturned by the U.S. Supreme Court. A group of anti-abortion doctors and groups filed a lawsuit against the U.S. Food and Drug Administration claiming the agency’s approval process for mifepristone was flawed and that the drug was unsafe and needed to be off the market.

The FDA has countered the claims and cited multiple studies showing the drug’s success rate and low complication history.

In August, the U.S. 5th Circuit Court of Appeals ruled in favor of restrictions that would only allow a doctor to prescribe the pill in person and not allow the drug to be used beyond seven weeks of pregnancy. But the U.S. Supreme Court has blocked all lower court decisions banning or limiting the use of mifepristone for the time being. And the U.S. Department of Justice, which is defending the Food and Drug Administration, has asked the Supreme Court to review the 5th Circuit ruling.

Holly Gatling, director of the nonprofit South Carolina Citizens for Life, wrote in an email that it’s too soon to know what if any action anti-abortion lawmakers in the Palmetto State might ever take concerning the abortion pill.

“We need a decision first” on mifepristone, she wrote. She added that “chemically exterminating unborn children as if they were vermin is morally reprehensible.”

Misoprostol, the second pill used in the sequence to carry out abortions, is usually taken right after or within 48 hours of taking mifepristone. On its own, misoprostol is primarily labeled as a drug to treat stomach ulcers.

Misoprostol, however, can be used alone for abortions in the first trimester of pregnancy. A study supported by the National Institutes of Health concluded in 2019 the drug was safe to use alone for first-trimester abortions. While the two pills are most effective when taken together, misoprostol is still nearly 80% effective when taken alone.

Deborah Billings, an associate professor at University of South Carolina Arnold School of Public Health, said misoprostol has been used as an over-the-counter abortion drug in other countries for years. However, doctors in the U.S. prescribe it only in conjunction with mifepristone because that is what the FDA recommends.

If a doctor were to prescribe misoprostol on its own as an “ulcer” medication knowing that it would not be used for that purpose, it would be risky and could carry consequences for the doctor. There is also the potential of felony charges for performing abortions after fetal cardiac activity is detected, under the state’s Fetal Heartbeat Act.

Because misoprostol is labeled as an ulcer medication, it’s not being targeted by anti-abortion lawmakers, Billings said. Mifepristone is labeled under abortion medication, which is why it has caught the attention of anti-abortion lawmakers.

Vicki Ringer, director of public affairs for Planned Parenthood South Atlantic, said in early stages of pregnancy, aside from the pill, women have the option of getting a surgical abortion, which is called aspiration and considered surgery, but is not super invasive. The abortion pill is used for those who want to have more privacy when allotting for an abortion, especially for women who’d like to be in the privacy of their home and not go through a procedure.

Ringer said she doesn’t foresee the medication being banned federally, or in South Carolina. The medication is used widely for miscarriage management as well as other medical conditions, not just for abortion.

Kathleen McDaniel, an attorney at Burnette Shutt and McDaniel in Columbia who joined Planned Parenthood in legally challenging South Carolina’s six-week ban, said she’s not aware of any current bills having to do with medication abortion in the state, but she added that could change depending on what happens in the 5th Circuit.

A federal decision on the abortion pill would have a trickle-down effect on the states, McDaniel said.

When Roe was overturned, anti-abortion lawmakers and activists saw a a chance to take further advantage of the new conservative “change in the ideological makeup of the U.S. Supreme Court,” McDaniel said.

“They said, if there’s ever going to be a time when we can get all types of abortion outlawed, now’s the time, so let’s bring these test cases and get it up to the Supreme Court as fast as possible in the hopes that with the makeup of the Supreme Court as it is now, they would prohibit even medication abortion,” McDaniel said.

McDaniel said she worries about a future with an uncertain “patchwork of access around the country. ... It puts everyone in this terrible situation of great uncertainty that is completely unnecessary.”