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Louisiana abortion drug bill latest front in post-Dobbs fight

Proposal would classify two drugs used in medication abortion and miscarriage management as controlled substances

A box of mifepristone, one of the two drugs used in medication abortion and miscarriage management.
A box of mifepristone, one of the two drugs used in medication abortion and miscarriage management. (Shuran Huang/Getty Images)

The Louisiana Legislature on Thursday passed legislation that would classify two drugs used in medication abortion and miscarriage management as “controlled dangerous substances” — a move that has prompted outcry from the Biden campaign and that experts say could have complicated downstream effects.

No state currently classifies either mifepristone and misoprostol as a controlled substance, which includes both illegal drugs as well as certain medications that are subject to tracking and monitoring to prevent misuse and diversion. The bill could provide a blueprint for other state legislatures seeking to restrict abortions.

The state Senate on Thursday passed a final version of the bill, which was amended in the House to include language labeling the medications as Schedule IV drugs, by a 29-7 vote. It now goes to Gov. Jeff Landry, who is expected to sign the bill.

The measure also has the support of Louisiana Attorney General Liz Murrill. Both Landry and Murrill are Republicans.

Louisiana state law already prohibits most abortions except in life-threatening situations, but the two drugs are still prescribed for other purposes in the state, including for the treatment of postpartum hemorrhage or ulcers.

Originally, the bill, Senate Bill 276, would have penalized individuals who attempt to give a pregnant woman the drugs without her consent. But the Louisiana House amended the bill to make possession of these drugs without a prescription subject to a penalty of five to 10 years of jail time and/or a fine of $10,000 to $75,000. 

The Drug Enforcement Administration and the Food and Drug Administration typically determine which substances are classified as controlled substances because of their likelihood to be abused, how addictive they are and if they have any medical use. 

The bill would list mifepristone and misoprostol as Schedule IV drugs. Schedule IV drugs include substances with a medical use that have a low likelihood to be abused but whose use may cause a physical or psychological dependence. The category includes drugs like diazepam, sold under the brand name Valium and used to treat anxiety or seizures, and eszopiclone, sold under the name Lunesta and used to treat insomnia.

States can also schedule drugs, and in some cases will implement tougher regulations for some drugs than at the federal level. This also enables the state to track which providers are prescribing the drugs and which patients are receiving them through what are known as prescription drug monitoring programs.

Proponents of the legislation, like SBA Pro-Life America Southern Regional Director Caitlin Connors, said the reclassification of the two drugs should be “uncontroversial.” 

“Like morphine and Valium, the drugs in question will still be available for prescription for legitimate medical reasons — like miscarriage care — but will be harder for abusers to obtain,” she said.

The Louisiana Society of Addiction Medicine opposed the bill and urged the legislature to find a different pathway to punish anyone who uses the drugs on another individual without their consent.

The organization’s president said its board, which is composed of physicians who support and oppose abortion rights, believes the bill would not prevent black market access of the drug and could result in more deaths of postpartum women.

The group also said the scheduling framework is intended to regulate drugs associated with substance use, and this model would have unintended effects like decreasing the likelihood the drugs are prescribed for legitimate purposes.

Political pushback

The prospect of a new type of restriction on medication abortion occurs as advocates are awaiting a Supreme Court ruling on mifepristone regulations. The two fights have fired up Democrats campaigning on the issue of reproductive rights.  

“If Louisiana is successful in passing this dangerous bill into law, other Republican-led states will follow,” said Democratic Legislative Campaign Committee National Press Secretary Sam Paisley. “The only way to stop this onslaught of Republican attacks in Louisiana and across the country is by making a concerted effort to build Democratic power in state legislatures.” 

The Biden campaign criticized the legislation Wednesday, lining up Louisianans to discuss its impact. Democrats are pushing reproductive health as their central campaign issue.

Mitch Landrieu, Biden-Harris 2024 campaign co-chair, said that “monitoring these pregnancies is going to have a huge chilling effect on women getting the kind of care that they need to manage and handle their pregnancies.” He said the bill includes language related to racketeering charges, which could result in a friend or family member facing criminal penalties for attempting to help a woman access the medications.

Ellie Schilling, an adjunct professor at Tulane Law School and reproductive health law expert, called the bill language “wildly inappropriate in terms of what these drugs actually do and are used for.”

“This legislation would lead to the government monitoring both pregnant women and those who prescribe these medications. The state of Louisiana would effectively be creating a database of prescriptions for every woman who is prescribed mifepristone and misoprostol, regardless of the reason,” she said during a Biden campaign call Wednesday.  

Kaitlyn Joshua, a woman from Baton Rouge, spoke about her experience being turned away for treatment from two emergency rooms while having a miscarriage in 2022, following the Dobbs decision. 

“Ultimately, it took me weeks to pass my pregnancy at home and I was absolutely terrified,” said Joshua on the call. “What I experienced can happen in all 50 states across this country if Trump returns to the White House.”

Louisiana State Sen. Thomas Pressly, the bill’s sponsor, accused Vice President Kamala Harris of “blatantly lying about my bill” in response to her tweet about it. Pressly said he was inspired to introduce the bill after his sister was tricked into ingesting the drugs.

Former President Donald Trump has not weighed in on the Louisiana legislation and has largely stayed away from making sweeping policy commitments regarding abortion on the campaign trail.

Earlier this week, Trump stated he was considering changes to contraception access before walking back the statement.

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