As abortion bans take hold in many states, questions arise about the legality of abortion pills.
“Medication abortions” became legal in the U.S. in 2000, when the Food and Drug Administration approved mifepristone for early non-surgical abortions up to the 10th week of pregnancies. The percentage of abortions by pills has risen steadily since then and now accounts for more than half of the total.
Since the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organizationgiving states the power to make their own decisions about abortion, the availability and legality of the pills vary widely.
The Legal Landscape
As of July 14, nine states had banned abortions, with more expected to follow in the coming weeks. By the end of summer, abortions will be banned in about half of the states and protected in the other half.
The abortion-ban states are prohibiting or severely restricting all abortions, whether by medical procedure or medication. A huge, looming question is whether states can crack down on drugs approved by the FDA, and legal experts say it is a dispute destined for the courts.
Until recently, the FDA required that women obtain the pills at doctor’s offices, clinics, or hospitals. During the COVID-19 pandemic, however, FDA allowed women to consult with health care providers via telemedicine appointments and receive the pills by mail. In December 2021, the agency did away with the in-person requirement.
Differences Over Interstate Travel
The Guttmacher Institute, an organization that focuses on reproductive health, predicts that 26 states will fully ban abortions, including medication abortion. At least until the courts rule on whether states can ban an FDA-approved drug, the women seeking abortions in those states face legal hurdles.
For many, it will mean traveling to a state that does not ban medication abortion for a telehealth appointment and having the medication mailed to a pick-up location. Although anti-abortion lawmakers may want to restrict this practice, it’s important to point out that in his concurring opinion in Dobbs, Justice Brett Kavanaugh stressed that interstate travel for abortions remains legal.
That is not stopping some anti-abortion groups from trying to stop interstate travel for abortion, however. Some of these efforts are borrowing from a Texas law that allows citizens to sue anyone who “aids and abets” abortions.
Pills in the Mail
When it comes to mailing pills, telehealth providers in abortion-legal states can face legal consequences for mailing them to women in abortion-ban states. That is because the patient’s location governs the law that needs to be followed. According to the Guttmacher Institute, 19 states have barred the use of telehealth for medication abortions, and four have barred the mailing of pills outright.
Because it is unlikely that any telehealth provider would take that risk, it means that women in abortion-ban states might start looking to other countries as a source for the pills, like the European organization Aid Access.
Other strategies, which might be legally risky, include creating mail-forwarding accounts with commercial shipping services. That way, for instance, someone in abortion-ban Texas could set up a mail-forwarding account in an abortion-legal state, consult with a telehealth provider there, and have the mail-forwarding service ship the pills to Texas.
The Biden administration, meanwhile, says it intends to do what it can to make abortion pills available. On July 8, President Joe Biden signed an executive order directing Secretary of Health and Human Services Xavier Becerra to prepare a report within the next 30 days on how to “protect and expand access to abortion care, including medication abortion.”
Still, in the states that are banning abortions, that means all abortions — including medication abortions — and Biden almost certainly won’t be able to stop them.
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