Biden is deregulating the 'pregnancy market'

16 July 2023

Thursday saw the biggest news since the United States Supreme Court immiserated the rights, privileges and social standing of half the country. The Biden administration approved, for the first time, the sale of a well-known birth control pill over the counter.

The Food and Drug Administration greenlit Opill without a prescription, “making it the first such medication to be moved out from behind the pharmacy counter,” the AP said. It added: “The manufacturer, Ireland-based Perrigo, won’t start shipping the pill until early next year, and there will be no age restrictions on sales. Hormone-based pills have long been the most common form of birth control in the US, used by tens of millions of women since the 1960s. Until now, all of them required a prescription.”

Since last summer, when the court’s rightwing supermajority struck down Roe, the president has spent his time talking about the need to codify the 1973 ruling, which is to say, for the Congress to enshrine abortion rights into law. To do that, his Democrats must retake the US House next year.

In talking about the need to codify Roe, however, Joe Biden inadvertently gives the impression that there’s not much else he can do in the meantime. After all, it’s the Congress that passes laws. Presidents just administer them.

But there has always been a lot he can do.

Thursday’s news is a case in point.

For the first time ever, the pill will be available outside the closed circuit of doctors and nurses that have had a monopoly on its distribution. Thursday’s news follows similar news earlier in the year, in which the FDA approved the sale of mifepristone, or the abortion pill, at retail pharmacies.

While Roe was law, both pills – one that prevents pregnancy and one that ends it – were tightly regulated. There was no political motivation to change the status quo. But the motivation is now profound. Both pills have been deregulated. And, in a post-Roe world, there’s probably no going back.

To be sure, a bevy of renegade federal judges has already tried invalidating established rules that govern whether and how pregnant people access mifepristone. (The court stayed those rulings in April, pending litigation.)

Meanwhile, Republicans in state legislators, especially in the autocratic southeast, are almost certainly going to move to outlaw over-the-counter birth-control pills in pharmacy chains that do business in their states.

But, as I said in April, a Supreme Court that’s under increasing pressure for blatant corruption by members of its rightwing supermajority might be open to overruling renegade federal judges who now fancy themselves would-be gynecologists. It may find the incentive to balance ditching access to abortion procedures and preserving access to abortion pills.

As for those state-level Republicans, they are left to scramble after the president’s efforts to deregulate the “pregnancy market,” as it were. At the same time, they must face a post-Roe backlash. During the 2022 midterms, six states offered ballot measures strengthening abortion rights, including Kentucky and Montana. Those ballot measures passed in each state.

(Moreover, Republican candidates seeking their party’s nomination sound increasingly gothic. On Wednesday, the AP reported that former Vice President Mike Pence said he’d ban abortion even if pregnancies weren’t viable. Apparently, killing babies is a no-no, but carrying dead babies is OK.)

The Supreme Court said it was sending power back to the states to decide matters of abortion. It was, in essence, decentralizing it. The result has been a patchwork of abortion laws across the country, with some (blue) states strengthening their laws and other (red) states weakening theirs.

But when the court shattered Roe, it shattered it into pieces much smaller than states. The Biden administration, with these new rules, is taking advantage of those consequences by deregulating the pregnancy market. Matters of abortion are not going to be entirely settled by the states, contrary to expectations. They will be decided by smaller places.

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