Spreeha Choudhury and Erin Sutton, Associates in the Health Care & Life Sciences practice, were quoted in Medical Marketing and Media, in “Mifepristone Under Fire: What’s the Future for Advertising Abortion Pills?” by Heerea Rikhraj.
Following is an excerpt:
Nearly three years after Roe v. Wade was overturned, the future of the abortion pill mifepristone remains uncertain.
While access to and distribution of mifepristone was preserved in a unanimous decision by the Supreme Court in FDA v. Alliance for Hippocratic Medicine last year, the medication isn’t out of the woods just yet.
In May, Arkansas Attorney General Tim Griffin sent cease and desist letters to companies based in New York and the Netherlands that advertised the ability to provide mail service of mifepristone to those in the state.
The two organizations — Choices Women’s Medical Center in New York City and Aid Access in the Netherlands — provide abortion medications to people in states where abortion access is limited.
Since the Dobbs v. Jackson’s Women’s Health Organization decision, abortion has been illegal in Arkansas — with the exception of saving a person’s life. Griffin said this law makes it illegal for companies outside of the state to sell and ship abortion medication to residents.
He added that his office would sue the organizations under Arkansas Deceptive Trade Practices Act if they continued to advertise and sell their products.
This legal challenge exemplifies the muddiness around access to the medication and raises questions for medical marketers about what implications this holds for the future of advertising drugs and products connected to women’s reproductive health.
“We don’t know how far legal actions against companies are going to extend to activity outside of the state’s borders,” said Erin Sutton, a healthcare attorney at Epstein Becker Green.
New administration, new approach?
The arrival of the second Trump administration sparked questions about whether the pill would face further restrictions.
Newly confirmed federal health leaders like Health and Human Secretary Robert F. Kennedy Jr. and Food and Drug Administrator Martin Makary have also contributed to the confusion surrounding access to the drug.
During his confirmation hearing, Kennedy was probed about his views on mifepristone. He did not comment on whether he would limit access to the drug and noted that President Trump asked him to look into the safety of the pill — though he attested that the president had not yet made a decision about the drug.
Makary echoed similar sentiments at his hearing. He largely dodged questions about whether he would uphold the use of mifepristone, instead noting that the agency may review new information about the drug if it comes up in the future.
Federal health policy changes have downstream impacts on health brands, including ones that have already been felt.
Shortly after the 2024 elections, MM+M reported that reproductive health companies saw a surge in patients receiving emergency contraception and the abortion pill.
Wisp, a telehealth platform that connects patients with reproductive service providers, saw a 600% jump in sales of mifepristone.
First Amendment issue
Much of what can or cannot be advertised is steeped in the First Amendment.
However, legal experts in the life sciences industry note the difficulty of determining what is legal or not as courts are still parsing out jurisdictional boundaries for some of these litigation efforts.
Sutton pointed to a recent example where a New York-based doctor was fined in Texas and charged in Louisiana for mailing abortion pills to women in those states.
While the case is not directly linked to advertising, it does center on the legality of distributing abortion pills.
Sutton argued that if Texas and Louisiana succeed in fining or indicting the doctor for their act, it could set an example for states to use policies around deceptive practices and advertising to limit these ads beyond their state borders.
“It comes down to how far can Texas and Louisiana extend their reach to activity that’s happening in the state of New York,” she said. “Even though it’s a different application, it’s the same kind of question that we’re still waiting for the courts to figure out.”
While prior cases around commercial speech have protected companies advertising abortion products in states where the practice is restricted, Sutton noted that those same cases might not be held up by today’s Supreme Court.
She specifically referenced Bigelow v. Virginia — a 1975 case which established First Amendment protections for commercial speech.
In that case, the state of Virginia charged editor Jeffrey C. Bigelow with a misdemeanor when he published an advertisement in the Virginia Weekly for an abortion service in New York.
At the time of the case, abortion was not illegal in Virginia or New York. The case was ruled in Bigelow’s favor by the Supreme Court two years after Roe was decided, which overturned the Virginia Supreme Court’s conviction.
Still, that kind of reasoning might be threatened given the current composition of the high court, which is widely considered to lean conservative, according to Sutton.
“We have a very different Supreme Court, a Supreme Court that is not averse to overruling precedent,” she said.
You’ve got mail
When it comes to mail in order services, Sutton and her colleague Spreeha Choudhury, a life sciences attorney at Epstein Becker Green, said advertisers should be on the lookout for any cases or rulings involving the Comstock Act.
This 1873 federal law bans the mailing of obscene abortion related matters and articles. Under the Biden administration, the Department of Justice determined that the act applies when the sender intends for the materials or drugs to be used for an illegal abortion.
As there are legal uses for mifepristone in every state, there is currently no way to determine if the sender intended for it to apply to an illegal abortion.
However, this does not mean this interpretation of the act will be upheld by the new administration moving forward.
“We haven’t seen it rescinded yet, but that is something that also might change with this administration,” Choudhury said.
The pair stressed that a different interpretation of this act could also lead to restriction of digital advertisements for mifepristone and adversely impact information and materials delivered by healthcare providers.
Since the practice of medicine is within a state’s purview, its elected officials could make determinations about whether a physician can hand out certain materials or information to patients.
This, Choudhury said, could make it trickier for health brands, medical marketing agencies and HCPs to provide patients with critical reproductive health information going forward.
State by state
While a reinterpretation of the Comstock Act or ongoing legal challenges from states like Texas, Louisiana or Arkansas could have severe implications for mifepristone, it could also impact other areas of health.
“If the administration or a state has an issue with other drugs or health concerns, these rulings could be used as precedent to restrict other access,” said Sutton.
The broadening of this into a larger challenge of prescription drugs, their distribution and promotion could have major implications for pharma and healthcare communications as a whole.
Moving forward, Choudhury advised advertisers to pay close attention to individual state policies when drafting advertising schedules for products.
She said the Trump administration and its congressional allies have indicated a willingness to make revisions to the Comstock Act, which would have an immediate impact on the industry.
“If that happens, it is going to be up to the states and the state laws,” she said. “Everyone who touches mifepristone and mifepristone advertising needs to rely on what states they’re in, the states they’re advertising and are sending [prescriptions] to, and what the laws say.”
