The next abortion fight could be about sewage regulation

If the FDA ignores or denies the petition, as expected, the group Students for Life of America plans to sue the agency along with the conservative legal force Alliance Defending Freedom, whose attorneys helped draft and defend Mississippi’s anti-abortion law, the was eventually overthrown Roe v. Calf.

The new push is the culmination of years of deliberation on how to limit access to the pills – particularly since their use following the Covid-19 outbreak and the FDA’s decision in 2021 that they were safe to take at home without a doctor, has increased greatly.

“We knew beforehand that chemical abortion was the future Dobbs happened,” said Kristi Hamrick, chief strategist at Students for Life, who called her organization’s environmental focus “the next innovation in ending the use of this corrupted abortion tool.”

While scoffing at the tactic, pro-choice advocates worry that even in states where abortion is legal, the sewage arguments could have a chilling effect — doctors are reluctant to prescribe the pills and patients afraid to seek them out .

“It’s a pretty egregious argument that the environmental movement is really shamelessly co-opting for their own agenda,” said Jenny Ma, a senior attorney at the Center for Reproductive Rights who has argued abortion pill-related cases. “Not only are they not citing actual science here, but they are trying to shame and stigmatize abortion and separate it from other medical care.”

Students for Life — which has worked closely with the Trump administration and GOP lawmakers on anti-abortion policy, has active chapters at hundreds of campuses across the country and has since sponsored work on voting in 33 states — said the Petition is only part of a national strategy.

The group is working on bills to implement the medical waste requirement with Rep. Bob Good (R-Va.) and other members of the new GOP representative majority, as well as state legislators in Arizona, New Hampshire, Ohio and Wyoming.

With Leonard Leo, President of the Federal Society, instrumental in bringing more conservative judges to the bench, and Co-Chair of the Board, Students for Life is also urging conservative Attorneys General to take enforcement action against doctors and abortion pill makers, and does so too? Schedule a tour of the college campus to advocate for the cause.

Should they prevail in any jurisdiction, the rules would be so onerous that use of the drugs could be effectively banned, several groups representing abortion providers told POLITICO. And even if unsuccessful in court, the effort aims to sway public opinion at a time when voters are increasingly accepting of early pregnancy abortions.

“It’s hard for me to imagine even a pro-Trump judge wanting a dispute over sewage regulation, but you never know. Any time there’s an issue of abortion, judges get weird,” said Mary Ziegler, law professor at the University of California, Davis and author of Abortion and the Law in America. “And we know that the more the anti-abortion movement can get people to think about fetal remains and other specific details about what abortion entails, the more uncomfortable Americans will feel.” So it might be helpful to them, even if it’s not going anywhere legally.”

The group’s FDA petition argues that the high numbers of people using pills to terminate pregnancies at home and flushing fetal remains down the toilet — which has increased in part due to the same group’s efforts to upset Roe v. calf and restricting access to surgical abortion – poses environmental risks.

It claims, without direct evidence, that traces of the drug in wastewater could pose a threat to livestock, wildlife and humans, citing some studies where the drug was administered directly to animals rather than being absorbed from groundwater and others where drugs flushed straight down the toilet have contaminated the water supply.

“Pharmaceutical contamination of water is a serious problem that can have serious environmental implications, but trying to say that one drug out of thousands has an outsized effect is based on ideologies, not evidence,” said Nathan Donley, Director from Environmental Health Science for the Center for Biological Diversity, which has written citizen petitions to the FDA. “Of all the drugs and synthetic chemicals that we excrete that can potentially contaminate water, abortifacients make up a fraction of a fraction of a percent. There is nothing.”

The petition also repeatedly cites studies on the environmental effects of hormonal birth control, leading some experts to question whether conservative groups will apply the strategy to other drugs in the future.

“It seems like they’re laying the groundwork for treating contraception itself as medical waste,” said Susan Wood, former FDA assistant commissioner for women’s health and professor of public health policy at George Washington University.

Hamrick insisted that the group’s work is “limited to pro-abortion drugs” and that it only cites contraceptive studies to argue that it’s also worth considering the effects of abortion pills on “aquatic and animal life, as well as the food supply.” investigate.

The petition acknowledges that the FDA evaluated the potential environmental impact of abortion pills when it first weighed approval, and cites a 1996 report in which “the Center for Drug Evaluation and Research concluded that the product can be manufactured, used and disposed of without any anticipated adverse environmental impact.” But Students for Life argued that this study was insufficient and outdated, and warranted further testing. The group also demanded that the agency require patients taking the pills to place the fetal remains in a medical waste “catch kit” and send them back to the medical provider.

A spokesman for the FDA told POLITICO the agency “is aware of the petition and will respond directly to the petitioner,” and declined to comment further.

Citizen petitions are a tool used by both sides in the decades-long struggle for abortion and contraception, and some have led to changes in FDA policy. For example, a request pending at the agency from the Center for Reproductive Rights, the American Medical Association, and other groups is asking the agency to relax rules on abortion pills to make them more accessible to patients who miscarry.

Zachary Kester, general counsel of Students for Life and author of the petition, said while he and other anti-abortion advocates see the FDA as “ground zero” for their efforts, they are also pursuing other avenues.

“We’re talking to attorneys across the country about different strategies and talking to state regulators to find a way forward,” he said.

Should a legal challenge based on their arguments about abortion pills reach the US Supreme Court, the group could find a receptive audience.

“The court has shown itself unwilling to give in to the federal authorities,” Ziegler said. “You are working with a court [that] is skeptical of the state of administration in a way that might be helpful to them.”

At the same time, the group is also urging members of the new GOP majority in the House of Representatives to use the appropriation process to force the FDA to conduct environmental studies. They also work with state legislators such as the Ohio Republican Representative. Jena Powell and federal lawmakers like Good on bills due to be introduced next year to impose a medical waste requirement on abortion pill use.

In a statement to POLITICO, Good called the flushing of fetal remains “reckless” and a “disgusting practice.”

With Democrats still in charge of the Senate and White House, the effort is unlikely to change federal law. But Students for Life hopes to gain a foothold in GOP-controlled states and sway public views about abortion pills as the drugs become more socially acceptable and government efforts to ban them have proven impossible to enforce.

“For those who aren’t concerned about chemical abortion pills because of their harm to preterm babies and women, they might be concerned about what’s in the water,” Hamrick said.

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