The Patchwork of Abortion Laws Presents a Challenge for Medical Marketers –

This article is part of an ongoing series examining the implications of the cancellation of Roe v. Wade on the pharmaceutical industry.

When the Supreme Court rendered its decision in Dobbs v. Jackson Women’s Health Organization and quashed Roe v. Wade, Americans have lost the constitutional right to abortion. But as the country’s legislatures impose stricter limits on abortion care, some patients are losing something else: the ability to get their medications. And access issues, compounded by a patchwork of state laws, have created a confusing operating environment for medical marketers.

According to the Guttmacher Institute, an abortion rights advocacy research group, abortion bans and restrictions are taking effect or are about to take effect in more than 20 states. The most restrictive regulations include those in Texas, whose “trigger law” threatens to make performing an abortion a second-degree felony punishable by life in prison.

“There’s definitely huge potential for a chilling effect, which we’re seeing right now,” said Jennifer Piatt, a research fellow at Arizona State University’s Center for Public Health Law and Policy and deputy director of the Network. for Public Health. Right.

“The problem with the Dobbs decision is that there are so many different laws in so many different states right now,” Piatt added. “Even if you take a look at just one specific state, there can be a number of different abortion restrictions, some with very broad wording and some that are more tailored.”

Lacking clarity about these laws — and hoping to avoid breaking them — healthcare providers have understandably been hesitant to perform certain procedures involving the treatment of serious pregnancy complications. The fear of criminal consequences has even extended to unrelated use of an abortifacient drug in patients with autoimmune disorders like rheumatoid arthritis, psoriatic arthritis and lupus.

Women with inflammatory diseases have reported social media that they have difficulty getting their methotrexate prescription filled, or even prescribed, in states that prohibit abortion. The drug has been used for decades to treat rheumatological conditions, but it is also used to terminate pregnancies – often in the case of ectopic pregnancies, which start outside the womb and can put a woman’s health at risk. danger.

This alternative use and legal concerns have given some pharmacists pause. The American College of Rheumatology has gone so far as issue a statement calling the problems of access to methotrexate an “emerging concern” and that he closely monitors the actions of pharmacists. The Lupus Foundation of America did the same.

“Laws generally require some form of intent to induce an abortion — the administration of a drug with the intent to induce an abortion,” Piatt explained. “There would be serious questions and arguments there as to whether a physician prescribing a drug for another indication would have the requisite intent to induce an abortion. That said, I can understand the desire not to become the target of litigation.

The chilling effect on providers after Dobbs could affect everything from reproductive care like IVF to contraception, hormonal implants and intrauterine devices. Technically, access to any medication that could cause birth defects or miscarriage, such as the acne drug Accutane or the so-called “morning after” pill, could be impacted.

These problems may get worse before they get better. Piatt said she expects a significant amount of litigation “to try to unravel the contours of restrictions in any given state.”

Access to the abortion pill mifepristone is at the center of an ongoing Mississippi case involving drugmaker GenBioPro, which argues that Food and Drug Administration approval prevents the ban from triggering the State. Even before Roe’s overthrow, conservative states clamped down on access to mifepristone, which is taken with misoprostol in self-directed abortion.

The Biden administration has said it will work to increase access to the drug, while patients have already turned to mail forwarding services and telehealth to circumvent state restrictions. Mississippi said in its latest court filing in the GenBioPro lawsuit that the Dobbs decision shifted the legal landscape “overwhelmingly in favor” of state authority to limit abortion.

Doctors argue that state laws should not supersede a doctor’s own judgment. “It’s critical that patients can access the medications they need, as prescribed by their physician in the context of their individual and unique health condition,” said Dr. Jen Villavicencio, Head of Equity Transformation at the American College of Obstetrics and Gynecology, in a statement.

Asked about reports that people of childbearing age have been or may be denied needed medications for fear of potential pregnancy, Villavicencio, an OB-GYN specializing in complex family planning, said the prescription drugs that can negatively impact a potential pregnancy is not uncommon. Indeed, this is a scenario with which medical professionals are quite familiar. Yet abortion bans, she said, “pitt people with health problems against their potential to get pregnant.”

Proponents of right to life laws say that is not their intention.

“If there is a legitimate off-label use for these drugs – say, misoprostol for an ulcer or mifepristone for diabetes – and the woman is not pregnant, I have not heard of any cases. where they couldn’t get those drugs or things like Accutane,” said Alexandra Snyder, attorney and CEO of the Life Legal Defense Foundation. “And if they can’t get them, it’s probably because they’re pregnant. “Even before Dobbs, no doctor prescribed this. It would be malpractice.”

How does this chaotic and confusing environment affect pharmaceutical marketers? It’s one thing to suspend an advertising campaign after a controversial event. It is quite another to knowingly answer medical business questions or promote health products in a compliant manner when abortion bans are spreading across the country and instilling fear of litigation and criminal charges among doctors and patients.

Companies should “dig into the particular laws of the state,” Snyder advised. “It all depends on the language, and the language can vary greatly.”

Some states, like Arkansas and Missouri, had trigger laws that were to go into effect immediately. Texas and Mississippi are among the states that will join them soon.

Of course, some of these laws were passed ten years ago. As a result, their language may differ from less contemporary laws — like that of Arizona, which reinstated a 1901 abortion ban, or Texas, whose 1925 ban is back on the books until what the state trigger law goes into effect. Still others, like Arkansas, include broad protection for unborn children, as opposed to banning specific drugs.

“It would be like any other product,” Snyder said of the potential marketing impact. “If a state bans any other product, you cannot market that product in that state. If you are marketing on the Internet…you should not specifically target people in a state where this product is now illegal.

But many state laws are contested. So health law experts say they look to the outcome of the GenBioPro case to provide more clarity to the industry.

“We’re in such a state of flux,” Piatt said. “We don’t really know how far some of these states are actually willing to go when it comes to enforcing abortion restrictions.”

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