The Legal Limbo of Menstrual Regulation: Implications of Expanding Reproductive Health Options in the United States.

Inspired by the broader movement to expand access and autonomy in reproductive health and rights, this Paper analyzes the legal implications of reintroducing menstrual regulation in the United States. "Menstrual regulation" (MR) is the process of inducing uterine bleeding following delayed menses without confirming pregnancy status. MR is distinct from abortion because there is no confirmation of pregnancy--a critical element in the medical and legal definitions of abortion, its regulation, and its practice. MR has been used in abortionrestrictive contexts, including in the United States prior to Roe v. Wade, and internationally, such as in Bangladesh. This therapy is most readily and safely accomplished through medication (specifically, misoprostol and mifepristone or misoprostol alone). Though these medications are used for medical abortion in the United States today, they are not currently used for MR, which is rarely, if ever, offered as an alternative. Similarly, while there are many laws and regulations governing abortion and contraception, there are none that address MR specifically. This begs the question, if MR were to be offered as a distinct therapy, what laws would apply for patients and providers? This Paper aims to increase awareness of what MR is, why it is not currently an option in the fertility control spectrum, why it should be, and what the legal implications would be if MR were introduced under the existing U.S. legal framework for reproductive health and rights. Part I sets the stage with more detailed information on how MR works. Part II explores how MR fits in the existing legal frameworks for contraception and abortion. Given that MR is used after intercourse but without confirming pregnancy, this process lies somewhere between pregnancy prevention (contraception1) and pregnancy termination (abortion2). The analysis of how MR may be categorized legally is informed by a review of the intrauterine device (IUD) and emergency contraception (EC), for which there were similar categorization debates that are now resolved. Part III assesses the specific legal implications of MR for user and provider if it were to be introduced today, including issues such as off-label prescriptions and insurance coverage. Finally, Part IV offers concluding remarks and initial recommendations. Through my analysis, I demonstrate that MR does not fit neatly into the existing legal dichotomy of contraception or abortion, and a third legal regime may best accommodate this therapy. Absent such a third option, contraception is the more appropriate category. In the few instances courts have considered MR, however, some dicta has categorized MR as an abortion. That there are very few cases on the subject, and the lack of consensus suggests the debate can and should be revisited. Currently, several studies are underway to explore interest in a "missed period pill"--another framing of MR--and thus this Paper seeks to update existing literature3 and contribute to the discussion among reproductive health advocates and lawyers exploring this topic. [ABSTRACT FROM AUTHOR]