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Kentucky’s abortion medication restrictions poised to clash with federal rules

Protesters at an abortion rights rally in downtown Louisville following the U.S. Supreme Court decision that undercut abortion rights across the country.
Protesters at an abortion rights rally in downtown Louisville following the U.S. Supreme Court decision that undercut abortion rights across the country.

Kentucky’s Republican-led legislature attempted to heavily restrict abortion medication in the state during this year’s legislative session–banning it from being sent through the mail and creating a regulatory system for doctors and pharmacists who handle it.

The policy has been blocked from going into effect, but if it does, it would come into conflict with the federal government’s stance on the issue.

Jamie Abrams, a constitutional law professor at American University, says abortion pill manufacturers, or even providers, might sue, arguing that the policies go against federal Food and Drug Administration regulations.

“It is rewriting the science of this drug in a way that is confusing to consumers, and really goes against the goals of the FDA in this regulatory space,” Abrams said.

Almost half of Kentucky’s abortions are medically-induced with a combination of mifepristone and misoprostol. A prescription is required to obtain the medication, but in December last year the FDA authorized it to be sent through the mail.

While abortion medication is currently legal in Kentucky the state, Republican Attorney General Daniel Cameron argued that after theDobbs decision, abortion medication was effectively banned in the state.

U.S. Attorney General Merrick Garland said states can’t ban abortion medication because it goes against “the FDA’s expert judgement about its safety and efficacy.”

During this year’s legislative session, Kentucky lawmakers passedHouse Bill 3, which bans sending abortion medication by mail and requires the state to create a system to regulate and monitor entities that make or distribute the medication.

Last week, a Jefferson County Circuit judge granted a restraining order preventing abortion bans from being enforced in Kentucky. The court blocked both the state’s “trigger ban,” which sought to automatically ban abortions after the Supreme Court’s decision, and the  ban on abortions after the sixth week of pregnancy. Because of the temporary ruling, abortion is currently legal in the state.

But if a referendum passes on Election Day in November,the Kentucky Constitution will include language explicitly saying the document does not guarantee the right to abortion.

Providers worry about misinformation and surveillance

Kentucky’s omnibus anti-abortion bill House Bill 3 also includes language that says it intends to prevent “medical complications arising from medication abortion.” But according to the Guttmacher Institute, medication abortion is highly effective and serious complications take place in less than .4% of cases.

Abrams says one of the most worrying parts of the bill requires doctors to “inform” patients about abortion-pill reversal methods that have no scientific backing.

“The bill adding its own informed consent rules creates a separate layer that the FDA does not stand by. It does confuse and undermine the FDA regulations on medication abortion,” she said.

Clinics in the state are preparing for changes in abortion access. According to Planned Parenthood Alliance Advocates executive director Tamara Weider, the fear and state of surveillance can discourage providers even if it’s legal.

“Things are still unclear, states have put heavy costs on the providers including jail time. So there’s fear and it’s going to be very difficult for providers to find a legal way forward in a state like Kentucky,” she said.

The Dobbs decision has created a patchwork of differing abortion laws across the country. Demand for abortion services and medication is surging at borders between states that provide access and don’t.

In Montana, where abortion is legal, providers are limiting abortion pills for people from neighboring states that are attempting to outlaw them.

Wieder said there’s still a lot for abortion rights advocates to figure out as fallout from the Dobbs decision continues.

“Doctors are scared of losing their licenses. And so as they navigate this new world post Roe, there is a lot to be determined, and it’s exceedingly fearful and unclear to providers,” Wieder said.

Divya is LPM's Race & Equity Reporter. Email Divya at dkarthikeyan@lpm.org.

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