In Libertarian Land, the Abortion Pill Question Would Be Left to the States

In the wake of the Supreme Court’s Dobbs decision, which reversed Roe v. Wade’s guarantee of a right to abortion, government policy toward mifepristone, the “abortion pill,” has become a focal point for debates about abortion policy.The United States Food and Drug Administration approved mifepristone in 2000, 12 years after approval in France. Mifepristone, taken in combination with misoprostol, allows pregnant women to undergo a medical, rather than surgical, abortion for early-stage pregnancies.Mifepristone poses an existential threat to the goals of abortion opponents. Mifepristone is a small pill, easily mailed to any address, including in states that have banned abortion. Thus not only can women in such states travel to places that have not outlawed surgical abortion; they can also get prescriptions for mifepristone via telemedicine.At least for early term abortions, therefore, state bans would reduce the frequency of abortion only modestly. Abortion opponents are therefore attempting to undo the FDA’s approval of mifepristone. An initial ruling from a federal judge in Texas may come as early as this week, though appeals may delay resolution for much longer. The crucial question is what happens if federal courts order the FDA to withdraw its approval of mifepristone. This would end legal medical abortions throughout the country, but the consequences would not stop there.Evidence from bans on drugs, alcohol, prostitution, and other goods or services suggest that rather than eliminating mifepristone from the market, a ban would drive the market underground. Already, providers in Europe are shipping pills to America.Thus a ban would inconvenience women seeking a medical abortion but likely reduce the number of abortions only slightly. In part, the ban would mean more women traveling to states or countries where surgical abortions are still legal. By driving the mifepristone market underground, moreover, a ban would generate all the standard consequences of government prohibition. Violence would emerge between rival suppliers, suppliers and customers, and wholesalers and retailers, since these market participants would not be able to resolve commercial disputes using lawsuits or arbitration and would therefore turn to violence instead.Quality control of mifepristone would decline, as occurred for alcohol during Prohibition and in the modern-day opioid market. Adulterated or ineffective pills would become far more common, causing accidental poisonings and other complications, as occurs now due to fentanyl-laced opioids, methamphetamine, and cocaine.Driving markets underground rewards criminal behavior: those who violate the law benefit relative to those who obey. Attempts to enforce a ban on mifepristone would involve intrusive police tactics like warrantless searches and no-knock raids, as occurs now under drug prohibition.Thus the question for abortion opponents is not whether banning mifepristone might reduce the number of abortions; it is instead whether any (modest) reductions are worth the unintended consequences of yet one more prohibition. Ban opponents, for their part, should use this controversy as a basis to reconsider their views on the FDA. Proponents of legal abortion generally want the FDA to regulate access to medicine. The mifepristone episode suggests that such a role inevitably gives the FDA powers that the FDA’s supporters might oppose.In Libertarian Land, the mifepristone controversy would play out differently. No FDA exists, so those hoping to ban mifepristone would have to advocate for a federal law that bans mifepristone directly.Given the absence of prohibition laws in Libertarian Land, such an approach would meet with deep skepticism. Not only do such bans have numerous undesirable side effects; they require federal interventions that are hard to reconcile with Libertarian Land’s understanding of the Constitution.The net implication is that, in Libertarian Land, abortion policy would be a state issue, with no role for the federal government. This is exactly what the Dobbs reversal of Roe, at least allegedly, intended.

In Libertarian Land, the Abortion Pill Question Would Be Left to the States

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