Last year, after Texas passed its strict abortion ban, surgical abortions in the state fell by half. Many women have found a workaround: pills. The week the law took effect, medical abortion requests soared from 138 a day to 11 a day at a single service that delivers pills by mail.
State anti-abortion lawmakers were already on it. The same week, they passed another law making it a crime to deliver abortion pills through the mail and forcing doctors to comply with new testing and reporting procedures to prescribe them.
Medical abortion is the new front in the five-decade national fight, as both sides predict that by summer the Supreme Court could strike down or curtail the constitutional right to abortion established in Roe v. Wade.
Abortion rights advocates, who argue that women should be able to make their own reproductive choices, see the pills as a workaround in states that have already moved to ban or severely restrict abortion . Women in these states were getting abortions not in the back streets of pre-Roe America, but through a post office box or a friend in a state where abortion remains legal, or at an online pharmacy in India.
For anti-abortion activists, who believe ending a pregnancy is murder, the pills are a backdoor to be locked with new restrictions and tougher criminal penalties. In the first three months of this year, lawmakers proposed more than 100 drug restrictions in 22 states.
States like Missouri are trying to go beyond their borders to prevent their residents from going elsewhere for abortions, either by pill or surgery. Connecticut and California, meanwhile, are rushing to protect their citizens who could be penalized for helping women in restrictive states get the drugs. A pill manufacturer has sued to overturn a Mississippi law that requires pills to be picked up and swallowed at a doctor’s office.
“Being able to send a medical abortion through the mail is a way to circumvent state laws, so it’s a real threat to states and advocates who want to ban abortion everywhere,” said Rachel Rebouché, professor and Acting Dean of Temple University Law School. .
Attempts to restrict abortion pills have accelerated since the Food and Drug Administration relaxed its rules on medical abortion late last year.
The FDA originally approved the use of mifepristone, the first of a two-pill regimen to terminate a pregnancy, in 2000, but required it to be provided in person. As the coronavirus pandemic spiked demand for telemedicine and in the face of legal action from medical groups, the agency lifted a ban on obtaining the pills via a remote appointment with a doctor. It allows only a limited group of providers to prescribe the pills – which are taken 24 to 48 hours apart – and allows the drug to be used only in pregnancies up to 10 weeks old.
In January, Americans United for Life, an anti-abortion advocacy group that publishes an annual handbook for like-minded lawmakers, said legislation against medical abortion was the first of its “most pressing priorities” for 2022.
Already, 19 states prohibit pills from being prescribed via telemedicine or delivered by mail. Nine additional states are proposing to do the same.
The change in priorities mirrors the change in the way most abortions are performed. According to the Guttmacher Institute, a research group that supports abortion rights, 54% of abortions in 2020 were by pills.
About half of the states are expected to ban abortion if the Supreme Court overturns or weakens Roe v. Wade, and the abortion ban applies to both medication and surgical abortion. On Tuesday, the Oklahoma legislature passed what could become the nation’s most restrictive law, an outright ban on abortion except to save the life of a mother with a medical condition or physical illness. Abortion providers who break the law could face up to 10 years in prison and a $100,000 fine.
Telemedicine requires doctors to follow the law of where the patient is located, so doctors in other states cannot prescribe or provide pills to women in any state that has a ban.
Many of the new bills add criminal penalties to existing prohibitions, on the assumption that women will obtain the pills illegally.
In Texas, SB 8, which prohibits abortion after about six weeks, requires civil enforcement, prompting citizens with bounties of at least $10,000 to sue anyone who helps a woman have an abortion. SB 4, the later law against medical abortion, establishes a criminal offense for delivering the pills, making it a state felony punishable by $10,000 and up to two years in prison. A bill in Iowa would ban distribution of the pills entirely, with penalties of $10,000 and up to 10 years in prison.
A law passed last week in Kentucky establishes a new state certification program for pill suppliers and will require their names to be published. It has also created an anonymous “complaint portal” which abortion rights supporters say will encourage harassment against providers.
Anti-abortion activists say they want the new laws to sound the alarm. They describe medical abortion as the Wild West of what they call “the abortion industry.”
Nancy Tate, the state representative who sponsored a 60-page omnibus abortion restrictions bill that passed in Kentucky last week, said during the debate that she went online and found it easy to get the pills. “Within 15 minutes I had this product on the way,” she said, “in indescribable packaging with no doctor’s visit, no consultation, no information.”
Mallory Carroll, spokesperson for the Susan B. Anthony List, which helps elect anti-abortion lawmakers, said, “A lot of people who have been in the pro-life movement don’t understand the level of threat. The industry has already moved from physical clinics to chemical abortion.
Anti-abortion activists have tried to cast doubt on abortion pills, calling them a “chemical abortion” and pushing for regulations requiring doctors to tell women they can cancel a medical abortion if they change their mind. notice after taking the first pill.
The American College of Obstetricians and Gynecologists says the so-called abortion reversal, in which a woman takes the hormone progesterone after the first pill, is “not based on science” and is “unproven and unethical”. The Center for Reproductive Rights and medical groups have won preliminary injunctions against abortion nullification laws in three states, arguing they violate doctors’ free speech by forcing them to provide what a judge called it “misleading” information to patients.
Yet legislation passed last week in Kentucky says “more than 1,000 lives have been saved” by reversing abortion. Under a Tennessee law temporarily blocked by an injunction, providers who refuse to tell patients about it could face up to six years in prison and health centers could be fined $10,000 a day. they refused to post signs informing women of the procedure.
Understanding Texas Abortion Law
The most restrictive in the country. Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks and makes no exceptions for pregnancies resulting from incest or rape. The law has been in place since September 1.
Abortion rights advocates say laws against sending pills will be difficult to enforce, as the laws generally avoid punishing women who have abortions. Still, they don’t rule out the possibility of people reporting women taking pills.
The threat of fines for doctors and additional demands placed on patients have a “chilling effect,” said Dr. Bhavik Kumar, an abortion provider at a Planned Parenthood clinic in Houston.
“There are so many restrictions in place that it just adds,” he said.
Texas law requires two visits to the same provider, which can complicate planning. The doctor must test the woman’s blood to see if she is Rh negative, a marker that could complicate future pregnancies, even though medical guidelines say the test is not needed for at least eight weeks. If so, the doctor should offer to give her Rh immunoglobulin. Doctors should also give women other warnings that are not supported by science; falsely telling them, for example, that abortion increases the risk of breast cancer.
“Some patients walk past it,” Dr. Kumar said. “But if you have a patient with a strong family history of breast cancer, you can imagine what kind of weight that adds. There is no real link there.
While medical abortion can be much cheaper than surgical procedures, testing and doctor visits can drive up the price and the time it takes.
Aid Access, a European service, continued to send pills to women regardless of state laws. However, he saw the number of requests for the pills drop after the law criminalizing them was passed, to 30 a day from 138 in the first week.
Several new groups supplying pills in the United States say they will only ship them to women in places where pill delivery remains legal. These groups imagine more complicated scenarios: a woman in a state that bans abortion orders pills from a friend in a state that allows them, who then sends the package to her.
Dr Jamie Phifer, founder of Abortion on Demand, said she hoped the increased use of telemedicine encouraged by the pandemic would also encourage acceptance of the provision of abortion pills in this way.
“Seeing the clinician on your phone for your urinary tract infection and seeing the clinician on your phone for an abortion won’t be that different,” she said.
Over the next few months, the FDA will establish rules to certify pharmacies that wish to dispense medical abortions.
Ms. Rebouché, a law professor, said pill suppliers could argue that FDA rules take precedence over new state restrictions. The maker of generic mifepristone, GenBioPro, for example, argues that Mississippi rules requiring abortion pills to be taken in a doctor’s office constitute an “unconscionable effort by Mississippi to establish its own drug approval policy.”