New lawsuit challenges Louisiana's classification of abortion pills as 'controlled substances'

A group of Louisiana health care providers and reproductive rights advocates are suing the state over a new law that classifies abortion pills as controlled dangerous substances.

The law went into effect a month ago and puts mifepristone and misoprostol — the two pills involved in a medication abortion — on Louisiana’s list of “Schedule IV” drugs. The category also includes certain stimulants, sedatives and opioids.

It’s the first time a state has classified abortion pills as controlled substances. 

In Louisiana, abortion is largely banned, so the law has not had a major impact on abortion access. However, abortions are allowed in some exceptional circumstances, and doctors often prescribe mifepristone and misoprostol off-label to manage a miscarriage. Misoprostol on its own is approved, as well, to prevent stomach ulcers.

In Louisiana, classifying the medications as Schedule IV drugs means that doctors must have a special license to prescribe them and hospitals are required to store the pills in a secure location, according to Allison Zimmer, an attorney representing the plaintiffs. Anyone who possesses the medications without a prescription could face a fine of up to $5,000 and up to five years in jail. (The law includes a broad exception, however, for pregnant women who possess the medications for their own consumption.)

The new lawsuit, filed Thursday, alleges that the law could create barriers for health care workers who need to administer mifepristone and misoprostol quickly in an emergency, thereby delaying patients’ access to the pills and creating a risk of harm. The complaint also says the law discriminates against people who need the medications, since patients with similarly severe medical needs aren’t subject to the same delays if they need other drugs. It seeks to prevent the law from being enforced.

“What it will do is just make it more dangerous to be pregnant or to have a variety of physical conditions,” Zimmer said.

The plaintiffs include a doctor, pharmacist, two reproductive rights advocates and the Birthmark Doula Collective — a doula practice that advocates for pregnant people in Louisiana. It names the state, the attorney general, the board of pharmacy and the board of medical examiners as defendants.

“The law is supposed to prevent misuse of the medications, but the real aim is to make abortion harder to access,” said Nancy Davis, one of the two advocates who brought the suit.

According to the American College of Medical Toxicology, mifepristone and misoprostol do not meet the definition of a controlled substance. The association warned in September that labeling the pills as such was “not consistent with decades of scientific evidence” and set a dangerous precedent of “politicizing pharmaceutical regulation.”

But Louisiana Attorney General Liz Murrill maintained support for the law on Friday.

“I’m confident this law is constitutional. We will vigorously defend it,” Murrill said in a statement.

In Louisiana, abortions are allowed only in cases where a fetus is not expected to survive, or if ending a pregnancy could save a pregnant person’s life or prevent serious risk to their health.

Zimmer said the new classification for abortion pills is “an example of the state trying to demonstrate as much as possible that it is an anti-abortion state.”

The law came about as a response to a particular case in Texas involving Louisiana Sen. Thomas Pressly’s sister Catherine Herring, whose husband was accused of slipping abortion pills into her drinks. The baby survived, and Herring’s husband pleaded guilty to charges of injury to a child and assault of a pregnant person. The Louisiana law established a crime known as “coerced abortion” — intentionally giving a pregnant woman abortion pills without her knowledge or consent.

“Ms. Herring’s courageous testimony illustrated that easy access to these drugs can be dangerous to pregnant women and exposes women to the risks of coercion, abuse, and criminal behavior,” Murrill said in a statement.

When Pressly originally introduced the bill, it did not include a classification of abortion pills as controlled substances — that was added later as an amendment, which Pressly said at the time was another step “to control the rampant illegal distribution of abortion-inducing drugs that ended up hurting my sister.”

But the new lawsuit alleges that the amendment isn’t clearly connected to the original bill and suggests that the law should be struck down altogether. Zimmer said the amendment was added “very, very late in the legislative process, at such a late date that there wasn’t a public hearing.”

The lawsuit says that Davis and another plaintiff in the suit, Kaitlyn Joshua, did not get an opportunity to testify in front of lawmakers before the law passed.

Joshua, a 32-year-old Baton Rouge resident, said she was turned away from two emergency rooms in 2022 after she started miscarrying at around 11 weeks. She worries that the policy could lead more women in Louisiana — particularly Black women — to be denied care like she was.

“This current law I know is going to disproportionately affect women that look like me, that already live in maternal health care deserts,” Joshua said.