Abortion Regret on Steroids--or Rather, Progesterone

My latest column for Verdict discusses a recent ruling by a federal district judge in Buffalo, NY, preliminarily enjoining state Attorney General Letitia James from bringing civil enforcement actions against crisis pregnancy centers for various deceptive business practices. As I explain in the column, the heart of the opinion--authored by a very anti-abortion Trump appointee--is the claim that the crisis pregnancy centers are not engaged in commercial speech because they provide their advice and services for free, that therefore the threatened enforcement actions must be measured by the strict scrutiny applicable to content-based regulations of speech, and that they fail.

The underlying speech consists of promotion of and advertising for "abortion pill reversal" (APR). People seeking to end their early pregnancies through medication abortion are typically prescribed the two-drug protocol of mifepristone followed by misoprostol up to 48 hours later. But if they have a sudden change of heart before taking the misoprostol, there is some evidence to suggest that by taking a progesterone supplement instead of misopristol, they can preserve the pregnancy.

The limited evidence for the safety and efficacy of progesterone-induced APR is not the result of scientific studies of the sort that would be needed for FDA approval of a drug therapy. It is thus an off-label use, and potentially an ineffective and/or unsafe one. Nonetheless, the judge said that even if the crisis pregnancy centers' statements promoting and advertising APR are false, they are protected by the First Amendment. My column is devoted to critiquing the judge's First Amendment analysis, although I also note that there are some tricky procedural questions in the case.

In the balance of today's essay, I want to locate the promotion of APR within the larger context of the anti-abortion movement's promotion of "abortion regret."

Attorney General James's complaint in state court against various crisis pregnancy centers and related organizations cites reputable sources that call into question the evidence for the safety and efficacy of APR. Indeed, it notes that there was only one double-blind placebo-controlled attempt to study progesterone for APR but that it "had to be halted after 3 of the 12 enrolled patients experienced severe hemorrhaging requiring ambulance transport to the hospital" (internal quotations marks omitted). The complaint also cites criticisms of the leading study on which APR's anti-abortion promoters rely.

I don't want to vouch for the methodology or conclusions of that study (which was published in Issues in Law & Medicine, a journal with a decidedly anti-abortion and occasionally anti-vax editorial policy), but I will note that I was surprised that the authors were able to find as many examples as they did of patients attempting the APR progesterone protocol. Their retrospective (uncontrolled, unblinded) analysis looked at 754 cases over the course of four years from 2012 to 2016. Based on the description of how they created their database, this appears to be most of the instances of progesterone-based attempted APR that actually occurred that year. The authors also state that the subjects were found using a database of over 1600 hotline calls during the same period. I've been unable to locate data on exactly how many people express interest in APR, but if we take these numbers--which apparently come from the most aggressive marketer of APR--it seems fair to say that it's more than 400 per year and probably on the order of magnitude of 1,000.

That's more than I would have guessed. In the pre-Dobbs period in which those data were collected, many red states required slanted disclosures about fetal life, abortion consequences, etc., before one could have an abortion. Even in states that lacked such laws, standard informed consent requirements for all medication would have required doctors prescribing mifepristone/misoprostol to explain to a patient what taking the drugs would do. It is surprising to me that more than a handful of people each year would decide--less than 48 hours after taking the mifepristone--that they didn't want to have an abortion after all.

But seen in proper perspective, about 1,000 instances of regret actually is only a handful. In 2016 (the last year of the study), there were over 623,000 abortions, of which 31.3% were accomplished with pills. (The percentage of abortions accomplished through medication, i.e., pills, is higher now.) That's a total of nearly 200,000 medical abortions. Combining our data suggests that fewer than one in a hundred patients who received mifepristone then expressed interest in reversing the abortion. It's not nobody, but it's a very small percentage.

Meanwhile, promotion of APR relies on the same claim of "abortion regret" that has featured prominently in the anti-abortion movement for decades. In the pre-Roe period, abortion regret was invoked--speculatively and illogically--as a ground for banning abortion. Despite a lack of evidence that abortion regret was a widespread phenomenon, Justice Kennedy's majority opinion in Gonzales v. Carhart invoked abortion regret to justify upholding the federal Partial Birth Abortion Ban Act. ("While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.") That was not merely speculative but also illogical because, even if some substantial number of people who had abortions came to regret it, that is not a reason to ban abortion or any particular method of abortion.

People can and do come to regret just about anything, from buying a house, to getting a tattoo with the name of a sweetheart with whom they will eventually break up, to having children. A 2021 study in Poland found similar results to prior studies of the same phenomenon in other countries: 17-18% of parents said they regretted having children. Many parents who regret having children may be reluctant to say so, even in response to an anonymous survey, as doing so could be taken to imply that they do not love their children. Thus, that figure is probably an underestimate.

In any event, whether people who have abortions or carry their pregnancies to term are more likely to regret their decision, regret is not by itself a reason to deny people choice. It is at best a reason to ensure that they fully appreciate the risks and benefits of the choice.

Although the possibility of regret was never a good reason for banning abortion, it is a good reason to allow people who were planning to have abortions or even who were in the midst of having an abortion, to reverse course--if that is possible. As I say in the column, if APR via progesterone or some other means is eventually proven safe and effective, it should be made available to patients who genuinely change their minds. Being pro-choice means allowing people to make their choices and to reverse those choices when they are in fact reversible. The problem, then, is not that the anti-abortion movement is devoting resources to making APR available; the problem is that they are peddling false and potentially dangerous information.