Herring saved the packets and turned them over to the Houston police. Her baby survived but was born prematurely and suffered health problems afterward. Her husband was convicted of two felonies — assault of a pregnant person and injury to a child — and sentenced to six months in jail and 10 years of probation.
The case enraged Herring’s brother, Thomas Pressly, a Louisiana state senator, and he used the story to rally his Legislature to pass a bill in 2024 regulating misoprostol and the second drug used in tandem to induce abortions, mifepristone, as “controlled dangerous substances.” The bill required women to obtain prescriptions for the medications; pharmacists would track who used it; and they had to report the doctors who prescribed it.
The Food and Drug Administration (FDA) had approved the use of the drugs, but the Louisiana law went a long way toward pre-empting FDA policy by creating extra barriers for women who wanted a medication abortion and frightening doctors who might approve it.
The law was not a ban, and it applied only to Louisiana. It did, however, feed the appetites of other states that wanted to tighten abortion access. Some conservative states had made virtually all abortions illegal, but many progressive states had considerably lowered the hurdles. Washington state, in fact, made it possible for pharmacists to prescribe and dispense the abortion medications without women having to visit a doctor. Other progressive states considered doing that as well.
Medication abortions had become the frontline of the abortion battle. In 2001, these accounted for just 6 percent of U.S. abortions. That increased to 24 percent in 2011 and 63 percent in 2023, according to the Guttmacher Institute, which tracks abortion policy. Women found it much easier to take the pills at home instead of having to visit clinics. It gave them more privacy, anonymity and protection from protesters at abortion clinics.
Medication abortions are a two-step process, with mifepristone as the first round, followed in 24 to 48 hours with misoprostol. For women living in a state that banned abortion, the medications made it relatively easy to travel to another state, get a quick consultation and head home. For women who couldn’t do that, either because they couldn’t afford it or because they lived hundreds of miles from an abortion provider, telemedicine made it possible to consult with a physician and obtain the medications by mail.
Conservatives believe that the easiest way to further restrict abortions is to choke off these options, and they think they can persuade Donald Trump’s nominee for FDA commissioner, Marty Makary, to reinstate the agency’s previous rule that only doctors could prescribe mifepristone. That would shut down Washington state’s policy empowering pharmacists and prevent it from spreading to other states.
The FDA could also reinstate the rule in effect before 2021 that required patients anywhere to make three visits to their doctor’s office to receive the drugs. That would make it far harder for women to travel to other states to obtain the medication and make it impossible to prescribe the drugs through telemedicine, which now accounts for 10 percent of all abortions.
In addition, there’s pressure from the right to enforce the Comstock Act, passed in 1873 to prohibit the mailing of information or material designed to produce an abortion. Conservatives are hoping they can use this law to choke off the interstate shipment of abortion drugs, although it would be difficult to uncover plain envelopes of the drugs among the thousands of pieces of mail that the U.S. Postal Service handles every second.
Red state attorneys general are setting up still another attack on blue-state abortion policies. In December, Texas Attorney General Ken Paxton sued a New York physician for providing abortion medications to a Texas woman. Paxton argues that Texas’ tough anti-abortion law prohibits shipment of abortion medication from another state. When state laws conflict, which one rules? This issue is sure to end up in the courts, and the conservative Supreme Court majority that Trump created could well accept Paxton’s argument.
Louisiana took even stronger action against Carpenter by issuing an arrest warrant for the online prescription of abortion pills. In pointing to her state’s shield law, New York Gov. Kathy Hochul said, “I will never, under any circumstances, turn this doctor over to the state of Louisiana under any extradition requests.” So the effort to nationalize a ban on abortions escalated into a war between the states.
Abortion proponents were unhappy with the court’s Dobbs decision in 2022 turning abortion decisions over to the states, but they contented themselves that they could establish abortion guarantees in some of them. The new strategies emerging from conservatives now, however, have created a multifront campaign designed to make abortion harder everywhere. As with so many issues, even the most earnest fans of federalism find it irresistible to make their state-based decisions into national policy.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
