Opinion: Federal agencies and abortion post–Chevron

Post–Roe America is bleak. The dangers presented by abortion restrictions and inadequate sexual education are no longer possibilities but stark realities. Women bleeding in parking lots are forced to wait for death to come knocking before doctors in red states feel shielded enough from potential liability to treat them. At best, America’s reproductive landscape is fragile, and at worst, it’s a Jenga tower one block away from collapse. 

Early in 2024, Idaho’s largest healthcare provider reported their hospitals airlifted multiple pregnant patients out of state because the state’s abortion restrictions prevented doctors from administering emergency care. Now, Idaho doctors and the U.S. Department of Justice are suing the state’s Attorney General, but President–elect Trump may direct the DOJ to drop the lawsuit. A second Trump presidency threatens states with pro–choice legislation as he flirts with a national abortion ban. 

Despite the increasingly antagonistic dynamics between providers, patients, and governments, abortion advocates are still attempting to expand access to abortion. Notably, the New York Times reported instances of abortion steadily increased between 2020 and the end of 2023 in nearly every state — a confirmation that abortion restrictions do not achieve pro–life goals and instead only restrict safe abortions. Advocates must be creative when problem–solving around states with near–total abortion bans to protect pregnant patients and infants. 

Specifically, protecting the use of two abortion pills, mifepristone and misoprostol, has emerged as a crucial pathway toward safer and more accessible abortions nationwide. Between 2020 and 2023, self–managed abortions increased from 53% of all abortions in the U.S. to 63%, and those numbers only account for abortions that occurred inside the formal healthcare system. Mifepristone and misoprostol are pills taken together as a safe and effective way to end an early–stage pregnancy, and they are the most commonly used medications for self–managed abortion. Mifepristone blocks the body’s production of progesterone, a hormone needed to maintain pregnancy. Misoprostol then induces the uterus to empty, similar to an early miscarriage.

The U.S. Food and Drug Administration (FDA) first approved mifepristone and misoprostol for abortion in 2000. Along with deeming the pills safe and effective, the FDA also established restrictions on prescription and dispensation including at what stage of gestation the pills could be used, the qualifications necessary for a healthcare provider to legally prescribe the pill, and consent forms for patients to sign indicating a provider explained the pills and process of medical abortion before prescription. The FDA later relaxed these restrictions in 2016 by extending the use of mifepristone and misoprostol from seven weeks to ten weeks gestation and decreasing the required number of doctor’s visits for a patient taking the pills. Most recently in 2021, the FDA lifted an in–person provision requirement of mifepristone and misoprostol, meaning providers and online pharmacies could mail the medications to patients. 

A study done in collaboration with the University of Texas at Austin and the National Women’s Health Network examined the extent to which prescription and distribution of self–medicated abortion increased following the Dobbs decision in June 2022. Despite the challenges of collecting data on abortions that occur outside the formal healthcare system, the study concluded that self–managed abortions increased nationally despite abortion restrictions. The expanded access to mifepristone and misoprostol and correlating data showing the rapid increase in self–managed abortion demonstrate a nationwide adjustment to public reproductive health post–Roe. 

Predictably, pro–life advocates are mounting new legal challenges that target the legality of mifepristone and misoprostol. A hallmark of the American conservative agenda is the desire to limit the reach of the federal government, including regulations imposed by federal agencies. Last summer, the Supreme Court heard a case called FDA v. Alliance for Hippocratic Medicine that involved a lawsuit brought by pro–life doctors and medical organizations seeking to force the FDA to rescind its approval of mifepristone. In a unanimous decision, the Supreme Court dismissed the lawsuit by ruling the doctors and medical groups lacked a legal right to sue the FDA because they were not directly harmed by the agency’s policies. Writing for the Court, Justice Brett Kavanaugh pointed out that federal laws “definitively protect doctors from being required” to prescribe medications against their will. 

At first glance, the dismissal was an agreement between six conservative justices and three liberal justices to protect access to mifepristone. But, the justices never actually ruled on the FDA’s authority to approve and expand access to mifepristone. And, just two weeks after ruling to protect FDA policies on the abortion pill, the conservative majority delivered a severe cutback to regulatory power. The conservative justices ruled to overturn the Chevron doctrine, a doctrine that stemmed from a 1984 Supreme Court decision granting federal agencies the power to interpret ambiguous statutes and requiring courts to defer to federal agency interpretations. For over 40 years, federal agencies relied on the Chevron doctrine, and the Court’s ruling has far–reaching public health implications from environmental regulation to healthcare costs to water quality. 

Cutting back on federal agency authority opens new avenues for pro–life advocates to challenge access to mifepristone. Sure enough, the attorney generals in three red states, Missouri, Kansas, and Idaho, revised and refiled the lawsuit against the FDA with the same goal of reversing FDA regulations regarding mifepristone. On January 16th, Judge Matthew Kacsmaryk of the Northern District of Texas granted the attorney generals’ request to reconsider the amended lawsuit. Judge Kacsmaryk is the same judge who heard the initial lawsuit against the FDA before it reached the Supreme Court in 2024. He ruled to suspend FDA approval of mifepristone and regulations citing “legitimate safety concerns” in opposition to conclusions drawn by the American College of Obstetricians and Gynecologists and the American Medical Association. One can imagine how he will rule this time around. 

In light of the Trump administration and pending challenges to the abortion pill, pharmacists have begun to take advantage of FDA regulations that allow them to both prescribe and dispense mifepristone. A pharmacist’s ability to prescribe different medications is dependent on the state, not the federal government, but a successful challenge to the FDA’s approval of any prescription of mifepristone will cut short this new effort to expand access to abortion. In short, the loss of federal agency authority prioritizes judicial interpretation over agency experts whether the issue is abortion or air pollution. 

“In short, the loss of federal agency authority prioritizes judicial interpretation over agency experts whether the issue is abortion or air pollution.”

What will this post–Chevron world mean for federal public health agencies? In the absence of explicit direction from Congress, federal agencies and beneficiaries of those agencies risk judges striking down policies without deference to agency expertise. How can the Environmental Protection Agency protect the environment if a judge disagrees with the agency’s actions and reverses regulations backed by science? How can the FDA regulate food and drug safety for the entire United States population, let alone approve mifepristone, if their authority can be undermined on the whim of a judge’s distrust of government interference? Deregulation may be legitimately supported when individual liberties are threatened by monopolies. But, when the ability to exercise individual liberty rests partly on being healthy enough to do so, relying on the federal government should be worth the interference. 

The solution should be through Congress. Congress should enact narrow statutes that return authority to federal agencies in specific contexts. If the country wants to benefit from institutions that keep food safe to eat and the air safe to breathe, desire must be represented in the people we send to Congress. We should insist that the value of agency expertise remains, not least because the FDA should be allowed to approve mifepristone if deemed safe, but because the entire country’s public health depends on it. 

“We should insist that the value of agency expertise remains, not least because the FDA should be allowed to approve mifepristone if deemed safe, but because the entire country’s public health depends on it.”