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Republican States Crack Down on Access to Abortion Pills as Supreme Court Decision Looms

10 minute read

As conservatives states have enacted strict abortion bans and ramped up regulations on abortion clinics in recent years, many patients have relied on another avenue to the same end: abortion pills.

But now, with the Supreme Court poised to overturn or significantly or pare back Roe v. Wade, the pills are increasingly in conservative lawmakers’ crosshairs, too.

Medication abortions accounted for the majority of abortions in the United States in 2020, according to data released earlier this year by the the Guttmacher Institute, a research group that supports reproductive rights. This marked the first time that abortion pills were the most common choice in the U.S. since the Food and Drug Administration approved one of them, mifepristone, in 2000.

Abortion rights advocates see medication abortion as a way to get around state laws that put stringent limits on procedural abortions and aim to close brick-and-mortar clinics. Telehealth startups focused on reproductive health are hoping to help expand access by mailing abortion pills directly to people’s homes or post office boxes. But abortion opponents see the pills as a threat to their goal of ending abortion in America, and are adding new restrictions with bigger criminal penalties.

These new laws, combined with structural barriers, such as poverty or a lack of internet access, are complicating the reach of medication abortion in a potential post-Roe world.

“Medication abortion is going to be critical,” says Elizabeth Nash, who tracks state abortion legislation for the Guttmacher Institute. “The reality that we are expecting is that there will be more gestational age limits on abortion across the country. And that means that some people will travel to states that have abortion access. But for other people, they may seek abortion through the internet. And so ensuring that there is at least some availability of care is incredibly important.”

New restrictions and penalties on abortion

Traditionally, someone looking for a procedural abortion must make an appointment at an abortion clinic, take time off work, travel to the clinic (often more than once), and potentially face protesters or at least other people in the clinic’s waiting room. Medication abortion eliminates many of these barriers. The two-drug regimen can be taken at a patient’s home, or any other location they choose, and once they obtain the pills, they don’t need to wait for an appointment time or interact with other people when taking the drugs.

Last spring as the coronavirus pandemic increased demand for telemedicine, the FDA loosened its rules requiring mifepristone, the first of the two pills, to be dispensed in person. This meant patients could get the pills via telemedicine appointments or mail-order pharmacies without the need to visit a physical clinic at all, and the agency made this change permanent in December.

But the shift, which was cheered by abortion rights supporters, also caught the attention of anti-abortion advocates and lawmakers. Sending abortion pills through the mail made them “more complicated for states to police,” says Michele Goodwin, a law professor at the University of California, Irvine and author of “Policing the Womb: Invisible Women and the Criminalization of Motherhood.”

“What’s particularly destabilizing and upsetting for some of the legislators who want to go after medication abortion is that there aren’t obvious targets,” she says.

Most mainstream abortion opponents say they do not want to punish women who have abortions; instead, many laws and regulations target providers. But that strategy becomes more difficult when patients use out-of-state providers or order medications from other countries. Already, 19 states effectively prohibit prescribing abortion pills by telehealth or sending them in the mail. Major anti-abortion groups, such as Americans United for Life and Susan B. Anthony List, have said that restricting the pills is a top priority for them this year. And in the first three months of 2022, conservative lawmakers introduced more than 100 restrictions on medication abortion in 22 states.

Some states, anticipating that the Supreme Court will at least weaken Roe v. Wade, are also passing total abortion bans that apply to both medication abortions and surgical abortions. Many of the new bills take novel approaches, such as Texas’ SB 8, which encourages private citizens to enforce a ban on abortion after about six weeks by offering at least $10,000 to individuals who sue anyone that helps someone obtain an abortion.

Texas passed another law that made it a felony to provide abortion pills through the mail and imposed a $10,000 fine and prison time for violators. Oklahoma recently passed a total abortion ban that makes violating it punishable with up to 10 years in prison and a $100,000 fine, and it is advancing a separate Texas-style bill of its own, too. Missouri lawmakers have introduced bills that would treat sending abortion pills as drug trafficking and try to limit people leaving the state to obtain abortions. In Tennessee, lawmakers are advancing a bill that would outlaw mailing the pills and impose additional requirements, punishable with a felony and a $50,000 fine. And in Kentucky, legislators passed a law creating a new certification program for abortion pill providers that would list their names publicly, and adding a “complaint portal” where people can anonymously report potential violations.

Many of the lawmakers advancing these bills raise concerns about the speed with which patients can obtain abortion pills and about the potential for complications. But abortion providers note that the pills are safer than Tylenol and Viagra, and that research has shown using telemedicine does not change that.

“These medications are so extremely safe that the greatest risk is really the legal risks or the risk of being prosecuted by ordering these pills,” says Ushma Upadhyay, an associate professor at Advancing New Standards in Reproductive Health, a research group at the University of California, San Francisco, who recently published a study in JAMA Internal Medicine which found that medication abortion was still safe and effective without in-person tests before patients took the pills.

That legal risk was on display this past week when a young woman in Texas was arrested and charged with murder after the local sheriff’s office said she caused “the death of an individual by self-induced abortion.” The county’s district attorney has dropped the charges and said the situation was “not a criminal matter”—but not before the woman spent days in jail and reproductive rights groups raised money to pay her bond.

As restrictions increase, Goodwin and reproductive rights advocates say that the patients most affected by additional barriers will be people of color, poor people, people in rural areas and those without other support systems to help them access abortions.

Goodwin says the incident in Texas, which effectively showed that different conduct is permissible for different groups of people, was reminiscent of the application of Jim Crow laws after the Civil War. “These are very innovative ways of creating a second class citizenship,” she says. “So slavery falls away, Roe falls away and there’ll be then these creative ways to further harness both criminal law and also harness civil penalties to chill people’s ability to terminate pregnancies, and also to chill other people who would want to aid and support and help them.”

Expanding access

Just as laws have done for in-person clinics, new bills are making things complicated for services that send pills by mail. Aid Access, a service based in Europe, will mail abortion pills to any state in the U.S. It saw a significant spike in demand after Texas’ SB 8 went into effect, but requests then leveled off.

Telehealth services based in the U.S. such as Hey Jane, Carafem, Choix, Just the Pill and Abortion on Demand started mailing pills to people after the FDA regulations loosened during the pandemic, but they can only send the drugs to states where it is legal to do so. While that means they can’t legally mail pills to a state like Texas, providers are thinking about ways that telemedicine can still shorten travel times for people who want to access their services.

A telemedicine study called TelAbortion that operated under an agreement with the FDA before the pandemic saw patients cross state lines to access its services, says Elizabeth Raymond, senior medical associate at Gynuity Health Projects, which ran the program. For example, a patient living in Tennessee could drive just across the border to Georgia, which allows telemedicine for abortion, do her video visit and have the pills sent there, and then return home.

“This telemedicine approach may open up options for patients who can’t physically go a very long distance that would require an airplane flight to receive the service, but they can just go somewhere where it’s legal and receive the service by telemedicine from that place,” Raymond says. “We didn’t have a large volume of this. But in the future, what we want to try to do is figure out how to make that more feasible.”

The startups providing abortion pills are now thinking about ways to do this. Hey Jane, for example, serves patients in New York, California, Washington, Illinois, Colorado and New Mexico, which CEO Kiki Freedman says the company chose intentionally because those states are friendly to abortion access and likely to see more out of state patients as restrictions increase elsewhere. If the Supreme Court does overturn Roe and allows conservative states to completely ban abortion, California would see nearly a 3,000% increase in out of state women whose nearest abortion provider is there, while Illinois would see nearly a 9,000% increase, according to Guttmacher.

“We do not view medication abortion as a panacea,” Freedman says. “But given the situation that we’re in, I would say the main role that we see ourselves playing is helping support access within the states that are going to be absorbing a lot of that demand. There just needs to be more availability of care providers there and I think telemedicine is a good way to make that happen.”

Now that it’s been one year since the Biden Administration’s FDA initially loosened regulations around the abortion pills, Hey Jane is considering its plan for a more restrictive future. Patients reported that comfort, privacy, convenience and cost were important factors when choosing Hey Jane, according to data the company released Tuesday. Abortions in clinics can cost between $500 and $1,000, whereas Hey Jane’s services cost $249 and other telemedicine providers are also often cheaper than in-person options.

Hey Jane’s typical patient is 29 years old and six weeks pregnant when they complete their intake forms on the company’s website; they typically complete the forms within two days of getting a positive pregnancy test. This would put that average patient already at the edge of Texas’ abortion law if they were in that state, but the speed with which patients are getting prescribed pills could help people who are otherwise seeing long wait times at clinics in surrounding states already overwhelmed with patients. Recently, 90% of Hey Jane’s patients have been getting prescriptions confirmed in 24 hours, Freedman says.

Still, these companies don’t work for everyone. Upadhyay is working on a study of more than 3,000 patients who have tried telehealth abortion visits, and says that preliminary data shows patients from underserved communities are often not aware of these options. With more states adding new restrictions all the time, she expects to see abortion pills playing an even bigger role—both through established channels and patients obtaining the medications on their own.

“This medicine is safe, people can use it on their own,” Upadhyay says, “but patients really do have the right to the care and comfort that comes from having a local provider support them.”

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Write to Abigail Abrams at abigail.abrams@time.com