UPDATE (May 21 2024, 6:12 p.m. ET): The Louisiana state House passed SB276, which would designate mifepristone and misoprostol as Schedule IV drugs under the state’s “Uniform Controlled Dangerous Substances Law.” The bill now returns to the state Senate.
The state of Louisiana has criminalized virtually all abortions from the moment of fertilization since the Supreme Court overturned Roe v. Wade in 2022. But now lawmakers want to go even further: On Monday, the state House began debate on a bill that designates the two pills most typically used in medication abortion, mifepristone and misoprostol, as Category IV controlled substances.
Why would Louisiana ban these pills again when it already has a sweeping prohibition in place? The proposal’s origins are of limited help in answering that question. It came as an amendment to a bill that originally focused on people who use abortion drugs on pregnant patients without their consent — an issue that has made headlines in several high-profile stories, including one involving the sister of the bill’s primary sponsor, state Sen. Thomas Pressley. Only after that bill unanimously passed the Senate, though, did Pressley propose the controlled substances amendment.
Abortion opponents have taken aim at members of a patient’s support network partly because other targets are off limits.
An exercise in empty symbolism seems an unlikely explanation. A poll this month by The Times-Picayune found that a majority of Louisianans believe that the state should allow abortions until 15 weeks. Instead, the new bill recognizes that existing bans have not been enough to stop the flow of drugs and patients across state lines — and develops new tools to track the use of these critical medications and frighten anyone who might prescribe them.
Louisiana law typically categorizes medications, such as opioids, as Category IV drugs because they are addictive and thus have a high potential for abuse. To prescribe such drugs, physicians in the state need a special license, and the state tracks the patient, physician and pharmacy involved in each prescription. Therein lies one of the primary functions of the law: The state has had a hard time enforcing its abortion ban in part because it is hard to identify when and how pills change hands. At least when a prescription originates in state, this bill might give Louisiana prosecutors an extra edge in identifying people to prosecute.
Equally important is the bill’s creation of a new crime: the possession of these abortion drugs without a prescription, with a sentence of up to 10 years in prison. The bill does not make it a crime for a “pregnant woman to possess mifepristone or misoprostol for her own consumption” — and, in theory, it exempts other lawful medical uses. But it is intended to crack down on a group antiabortion advocates have targeted since the reversal of Roe: “aiders and abettors,” a term applied to friends, family and others who help abortion patients.
Abortion opponents have taken aim at these members of a patient’s support network partly because other targets are off limits. Antiabortion groups have vowed — in the face of dissension from so-called antiabortion abolitionists — not to punish women. Physicians, for their part, often prove unwilling to run the grievous legal risk involved in violating a criminal ban. That leaves others willing to help patients. This bill gives prosecutors a new tool: If anyone possesses mifepristone or misoprostol without a prescription, it does not matter whether they ever perform an abortion.
The interest in prosecuting aiders and abettors isn’t new. Texas’ SB8, a law that predated Roe’s demise, allowed anyone to sue members of a support network for at least $10,000 any time an abortion occurred. Local ordinances targeting “abortion trafficking” focus on those who transport others seeking an abortion.
The easier it is to track the use of abortion drugs, the more real the threat of future criminal charges will feel. Even if this bill passes, patients might travel out of state for abortion, or receive abortion medication from a physician in a state that protects abortion rights. Targeting aiders and abettors in these circumstances isn’t easy. To begin with, there would be questions about which state’s law applied if an abortion took place somewhere that protects reproductive rights. Even if a state accuses those in a support network of conspiring around abortion — something that could take place entirely within state lines even when a patient later traveled — it is not clear criminal charges would hold. In a recent ruling, a federal judge in Alabama suggested such a prosecution could violate the right to travel and freedom of speech. Perhaps more than anything, then, the bill was intended to have a chilling effect — and not only on those who could face charges based on the new law. Physicians and pharmacies dispense mifepristone and misoprostol for many other reasons besides abortion, from miscarriage management to the treatment of ulcers. The narrowly drawn exceptions to abortion bans in states like Louisiana have already made many physicians unwilling to intervene when a pregnancy threatens a patient’s life or health. The new rules governing mifepristone and misoprostol will add new legal uncertainty that may make doctors even more afraid to act. The chilling effect is unlikely to be limited to physicians. Those in a patients’ support network — the most likely targets of the bill — will be affected. That will isolate patients for whom pregnancy is already a dangerous prospect, in a state with one of the highest rates of maternal mortality in the nation. And many patients, aware that their use of such drugs will be tracked, will rightly fear prosecution. Within the antiabortion movement, support for the idea of punishing women for ending their pregnancies has grown in recent years. Louisiana, in fact, is the only state where a so-called abolitionist bill passed out of committee. The easier it is to track the use of abortion drugs, the more real the threat of future criminal charges will feel. Louisiana’s new law may feel duplicative of the bans already on the books, but the opposite is true. Since the overturning of Roe, we have seen relatively few abortion prosecutions. With more laws like this one, that won’t stay true for long.
Mary Ziegler is a law professor at the University of California, Davis, School of Law and the author of "Roe: The History of a National Obsession." 
