When an Abortion Ban Is Not Enough: Louisiana Seeks to Add Abortion Pills to List of Controlled Dangerous Substances

A Texas man pleaded guilty to slipping abortion pills to his wife. Anti-abortion extremists see the crime as an opportunity to cut off the flow of abortion pills.

An abortion rights rally outside the Supreme Court as the justices of the court hear oral arguments in the case of the FDA v. Alliance for Hippocratic Medicine on March 26, 2024, a case challenging the 20-plus-year legal authorization by the FDA of mifepristone, a commonly used abortion medication. (Anna Moneymaker / Getty Images)

In February, Texas attorney Mason Herring was sentenced to 180 days in jail and 10 years probation after pleading guilty to slipping abortion-inducing pills into Catherine Herring’s drink, his wife from whom he was separated, without her knowledge or consent. She subsequently gave birth to a baby who was born 10 weeks prematurely with significant developmental delays, which have required intensive therapy.

Herring’s light sentence for this act of heinous reproductive coercion has drawn considerable anger.

  • Pointing out that “women have spent years in prison for attempting their own abortions or for using drugs or alcohol while pregnant” in an interview with the Daily Beast, Dana Sussman, senior vice president of Pregnancy Justice, stressed that unlike Mason, these women “had not committed any acts of violence … that is not consented to by someone else, that is abusive or harmful to anyone else.”
  • Journalist Kathryn Rubino decried the hypocrisy of Herring’s light sentence in a state that “has been at the forefront of restricting women’s bodily autonomy”—a hypocrisy that underscores the fact that Texas’ strict legal regime is aimed at “controlling women’s bodies,” rather than its purported goal of “saving unborn children.” 

Herring’s Sentence Channeled by the Anti-Abortion Movement

For the most part, however, anger over the lightness of Herring’s sentence has been channeled by the anti-abortion movement into its broad-based and unrelenting post-Dobbs campaign to cut off the flow of abortion pills by any means possible. This effort is perhaps best exemplified by the case recently heard by the Supreme Court over whether, as argued by Alliance of Hippocratic Physicians, the FDA abused its authority when it loosened existing restrictions on the prescribing and dispensing of mifepristone’s (the first drug in the two-drug regime that is the standard medication abortion protocol in the United States). 

Rooted in this anger, Catherine Herring’s brother, Thomas Pressly, a Republican state senator from Louisiana, drafted a bill in collaboration with Louisiana Right to Life which creates the new crime of “coerced abortion by means of fraud.” A conviction for providing a pregnant person with an “abortion-inducing drug … without her knowledge or consent” can result in a 20-year prison sentence and/or a fine of up to $100,000. The bill was subsequently amended to add the abortion pills mifepristone and misoprostol to Schedule IV of the state’s Uniform Controlled Dangerous Substances Act, which, as discussed below, gives Pressly’s bill a particularly consequential and dangerous reach. 

On Tuesday, the bill passed in the state’s GOP-controlled House of Representatives, 64-29. The measure will now go back to the Senate, and if approved, will be sent to Gov. Jeff Landry (R) to sign into law, which he is expected to do.

Given that Louisiana has one of the most restrictive abortion regimes in the country, as the Guttmacher Institute’s interactive map clearly illustrates, what does this bill add to state’s near absolute ban on both procedural and medication abortions? The answer lies in the post-Dobbs upsurge in the number of pregnant persons in restrictive states who are sourcing abortion pills outside of the formal medical system for self-managing their own abortions or possibly also for use in the case of a future pregnancy—a practice known as “advance provision.” 

The ability to self-source pills even in red states through reliable providers and community networks of volunteers clearly threatens the sustainability of abortion bans in states such as Louisiana. Although the bill was initially framed narrowly in terms of holding men such as Mason Herring accountable for their heinous behavior, as quoted on the Louisiana Right to Life website, Pressly makes clear that “throughout the process, I have been trying to determine what other steps I can take to control the rampant illegal distribution of abortion-inducing drugs that ended up hurting my sister.”

Sen. Pressly’s Amended Bill

To that end, Pressly amended his bill to add mifepristone and misoprostol to the controlled substances list. Building on the “illegal distribution” trope, Benjamin Clapper, executive director of Louisiana Right to Life, lays the blame for Herring’s bad behavior squarely at the feet of “the Biden administration’s reckless policy to allow abortion pills to be distributed online without an in-person doctor’s visit” which makes it “too easy for men intent on ending the life of an unborn baby, often against the will of the pregnant woman, to acquire abortion pills.” 

It is the proposed addition of mifepristone and misoprostol to the state’s dangerous controlled substances list—an apparent first in the country—that has raised the alarm. This reflects the fact that, as recently reported in JAMA, “access[ing] abortion medications outside the formal healthcare setting, despite state-level bans and restrictions,” has become a more mainstream practice post-Dobbs—a practice that can be a saving grace for those who are unable to travel to an abortion protective state due to a barriers such as cost, an abusive partner or young children.

Studies have documented that self-managed medication abortion is a “safe and highly effective method” for terminating a pregnancy.

The ability to obtain abortion pills for possible future need can be a critical way to “preserve reproductive autonomy” in abortion ban states. 

However, the proposed listing of mifepristone and misoprostol on Louisiana’s controlled dangerous substances list indicates that preventing the thwarting of the state’s strict abortion ban by way of the cross-border flow of abortions pills is a hill the legislature is likely willing to die on. If successful, possession without a prescription would become a crime punishable by imprisonment for up to five years, and possession with intent to distribute would be punishable by up to 10 years. 

Consistent with the usual structure of criminal abortion laws, pregnant women are exempt from prosecution for possession of abortion pills for their own use. However, this could be read as a begrudging nod to the right of decisional autonomy. As Pressly makes clear, women who terminate a pregnancy should not be punished as they “are often the second victims of abortion”—a trope that resonates with “pro-woman/pro-life” anti-abortion position which negates the possibility of abortion as an authentic choice. 

The categorization of mifepristone and misoprostol as controlled substances would subject abortion care providers to criminalization. And while pregnant women who source pills for purposes of self-managed abortion are immune from prosecution for possession, those who assist them in doing so may well be punished for possession with intent to distribute. Moreover, a person who obtains abortion pills for possible use in the event of a future pregnancy are likewise not immune from prosecution.  

Accordingly, as quoted in Jezebel, Sussman stresses that Pressly’s bill “builds on the blueprint for broader abortion and pregnancy-related criminalization that we’ve been seeing for some time.” Underscoring the expansion of this surveillance apparatus, she called the “requirement that someone prove they’re pregnant and plan on imminently using the pills” “incredibly invasive and intrusive.”

It’s just really jaw-dropping. Almost a day doesn’t go by that I don’t utilize one or both of these medications.

. Nicole Freehill, a New Orleans OB-GYN

Over 250 healthcare providers in Louisiana have signed a letter urging Sen. Pressly to rescind the controlled substances amendment. “Schedule IV drugs … [have] clear and demonstrated dangers of abuse and dependence,” they wrote—which is not the case for either mifepristone or misoprostol, as both are “widely prescribed and taken safely” for miscarriage management (among other reasons).

They warned that adding them to the controlled dangerous substances list will “require more complex coordination by pharmacists, patients, and providers, with increased documentation needs and often longer waits for medications. Overall, this results in fear and confusion among patients, doctors, and pharmacists, which delays care and worsens outcomes.”

They further stressed that particularly in light of “its historically poor maternal health outcomes, Louisiana should prioritize safe and evidence-based care for pregnant women,” rather than enact a law “that is a threat to the safe and autonomous practice of medicine in Louisiana [with] a chilling effect on patients and providers.”

And while expressing her sympathy for the “terrible crime Pressly’s sister experienced,” Dr. Jane Martin, a maternal fetal specialist in Louisiana, highlights the wrongheadedness of his effort to vindicate her by way of criminalizing the possession of abortion pills.

It “doesn’t matter whether it was misoprostol or lethal doses of Tylenol,” explained Martin. “You can slip somebody lethal doses of anything to hurt them, but that doesn’t mean that a state should mark this as a controlled substance.” 

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Shoshanna Ehrlich is professor emerita of women’s, gender and sexuality studies at the University of Massachusetts Boston. Her books include Who Decides: The Abortion Rights of Teens and the co-authored Abortion Regret: The New Attack on Reproductive Freedom. She is currently collaborating with the Planned Parenthood League of Massachusetts’ ASPIRE Center for Sexual and Reproductive Health on a minors’ abortion rights and access project.