Alabama attorney general steps back on abortion pill prosecution statement

While the state has some of the most restrictive abortion laws in the country—prohibiting abortion at all stages of pregnancy without exceptions for rape or incest—Alabama Attorney General Steve Marshall cited a separate 2006 law that has previously been used to charge women for drug consumption during pregnancy.

Marshall’s office issued a statement to the Washington Post on January 11 further stating the abortion ban “does not provide an across-the-board exemption from all criminal laws, including the chemical-endangerment law—which the Alabama Supreme Court has affirmed and reaffirmed protects unborn children.”

An additional statement was released 3 days later appearing to withdraw Marshall’s remarks, emphasizing that his issue lies with providers rather than pregnant women themselves.

The US Food and Drug Administration (FDA) finalized a rule change earlier this month that expanded availability of the abortion pills misoprostol and mifepristone, granting retail pharmacies permission to dispense the pills once they obtain certification in accordance with federal safety rules.¹

The Biden Administration had previously implemented the rule temporarily in February 2022, but prior to, medications for abortions needed to be picked up at specialty clinics in person.²

However, earlier this month, officials at the US Department of Justice published a legal opinion from Justice’s Office of Legal Counsel (OLC) permitting carriers with the US Postal Service to deliver abortion pills across the US, including those in states that have banned abortion.³

“We conclude [the statute] does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully,” OLC Chief Christopher Schroeder wrote. The opinion also offered limited assurances that a federal law addressing the issue will not be used to criminally prosecute people over such mailings.⁴

Providers are also able prescribe abortion pills to patients via telehealth visits, and patients in states where abortion remains illegal can receive them by mail. The new rules, which are vastly improving access to abortion care nationwide, may eventually lead to clashes with anti-abortion states such as Alabama.

As brick-and-mortar stores and mail-order pharmacies begin to implement the changes, attorneys general across the country are expressing their disagreements to the FDA.

On January 14, Marshall officially became the 22nd chief legal officer to speak out against the decision in a letter to FDA Commissioner Robert Califf, urging him to reverse it.⁵

“The Food and Drug Administration’s decision to abandon commonsense restrictions on remotely prescribing and administering abortion-inducing drugs is both illegal and dangerous,” the letter says. “In direct contravention of longstanding FDA practice and congressional mandate, the FDA’s rollback of important safety restrictions ignores both women’s health and straightforward federal statutes. We urge you to reverse your decision.”⁶

Marshall is among other anti-abortion attorneys general in Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.

“The authority to regulate abortion lies with the people and their elected representatives,” the letter says. “In our states, we prioritize the health and safety of women and children, and our laws reflect this. And in many states, including Alabama, elective abortion is illegal.”

References

1. Pennar K. FDA finalizes rule expanding availability of abortion pills. STAT. Published January 4, 2023. Accessed January 16, 2023. https://www.statnews.com/2023/01/03/fda-finalizes-rule-expanding-availability-of-abortion-pills/
2. Perrone M. US regulators lift in-person restrictions on abortion pill. AP NEWS. Published December 16, 2021. Accessed January 16, 2023. https://apnews.com/article/coronavirus-pandemic-abortion-health-medication-a6634601a37fb048aecdd9f030e0863a
3. Justice Department clears Postal Service to carry abortion drugs into red states. POLITICO. Published January 3, 2023. Accessed January 16, 2023. https://www.politico.com/news/2023/01/03/justice-department-postal-abortion-drugs-00076274#:~:text=The%20Justice%20Department%20has%20cleared,people%20criminally%20over%20such%20mailings.
4. The US Department of Justice. Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions.; 2022. Accessed January 16, 2023. https://www.justice.gov/olc/opinion/file/1560596/download
5. Colurso M. Alabama Attorney General Steve Marshall urges feds to reverse decision on abortion pills. al. Published January 15, 2023. Accessed January 16, 2023. https://www.al.com/news/2023/01/alabama-attorney-general-steve-marshall-urges-feds-to-reverse-decision-on-abortion-pills.html
6. Letter From Alabama Attorney General Steve Marshall to FDA about abortion pill rule change. Scribd. Published 2023. Accessed January 16, 2023. https://www.scribd.com/document/619779306/Letter-From-Alabama-Attorney-General-Steve-Marshall-to-FDA-about-abortion-pill-rule-change?irclickid=wDaweOx1VzThWB5RWDXnR18cUkAwKUQhW1yzx80&irpid=10078&utm_source=impact&utm_medium=cpc&utm_campaign=affiliate_pdm_acquisition_Skimbit%20Ltd.&sharedid=al.com&irgwc=1#