On Tuesday, Oklahoma became the latest state to pass a bill to make performing an abortion a felony, punishable, in this case, by 10 years in prison and a $100,000 fine. The bill is expected to be signed into law by the governor, creating an even larger group of people – about 7.7 million between Texas and Oklahoma – who will have to leave their home state if they want an abortion.
Republican legislators are passing restrictions and bans on abortion, in expectation of a supreme court decision in a crucial abortion rights case expected in June. Until then, abortion remains legal, albeit severely restricted in some cases, across the US.
There was some hope that medication abortions might help alleviate this pressure. In July 2020, the US Food and Drug Administration announced that anyone seeking a medication abortion – that is, an abortion by taking pills, up to 10 weeks into a pregnancy, without the need for an operation – would no longer have to pick up the medication in person, or take it in a doctor’s presence.
Its decision to stop enforcing in-person requirements for the abortion drug mifepristone was a response to the Covid-19 pandemic, but in December, in consensus with the medical community, it ended the requirement for good.
Mifepristone, which data shows is safer than acetaminophen, is now available for US patients to acquire via telehealth services like Abortion on Demand and Just The Pill, which offer online appointments and discreet mail order medications. Consultations and ordering are straightforward and user-friendly on these sites and pills are posted in less than five days. People may take it without a provider’s oversight in the comfort and privacy of their own homes, just as they did after obtaining it in-person from a doctor.
The FDA’s decision empowered a wave of certified virtual clinics. In the coming months, the FDA is expected to clarify how pharmacies, like Walgreens and CVS, can distribute mifepristone for the first time.
The increased accessibility of abortion medication is a huge asset to people living in states that permit it – in fact, medication abortion accounted for 54% of all US abortions in 2020, up from 39% in 2017, according to research from the pro-choice Guttmacher Institute.
“We were overjoyed [at the FDA’s decision], because over the years we’ve been building evidence that continues to show that people who want to use [mifepristone] to end their pregnancy … they are very capable of being able to read the instructions and do so on their own,” says Liza Fuentes, a senior research scientist at the Guttmacher Institute.
However, 19 states currently have laws requiring an in-person element to abortions, such as an ultrasound or an in-person counseling session, precluding a totally virtual experience. And some states, including Texas, Arizona, and Louisiana ban abortion telehealth services outright.
For those seeking an abortion in states where it is restricted, acquiring abortion pills through the mail is a much quicker and more affordable option than having to travel across state lines for an in-person appointment.
Already, says Rachel Rebouché, interim dean of Temple University’s law school, people seeking medication abortions can use social media to find advice on how to change their VPNs, have pills illicitly mailed to a FedEx drop-off point in a neighboring state, or how to have pills sent to someone else who can deliver them.
But Republicans are aggressively restricting access to telehealth care for abortions in red states, with many creating trigger laws aimed at banning or severely restricting abortion across the board should Roe v Wade be overturned. And while some states have interstate agreements allowing healthcare providers to offer telehealth services across borders, providers are beholden to the laws of the patient’s home state, preventing blue state doctors from mailing abortion medication to red state patients.
Republicans are also attempting to amend anti-abortion bills further to prevent red state residents from getting abortions regardless of where the abortion takes place – even if they travel to a blue state to access in-person or telehealth care. Even if, for instance, a resident of an anti-abortion state traveled to California, these laws would see that their body remained under the jurisdiction of their home state. Some red states could likely already prosecute under existing accomplice and conspiracy laws.
“You see states like Missouri trying to attach its laws to providers who are providing abortions outside of Missouri, but trying to think about how to civilly penalize those providers by saying ‘any provider who provides an abortion to a Missouri resident is bound by the laws of Missouri,’” says Rebouché.
Experts anticipate the brunt of aggressive anti-abortion enforcement will be disproportionately borne by those with few resources – people of color, low-income families, and the young.
Blue states are working to enshrine abortion rights within and beyond their borders, with some refusing to accept that state legislatures can impinge on the sovereignty of other states by enforcing laws beyond their own jurisdictions. California and Connecticut are both actively advancing abortion rights, working to shield “providers from legal liability and prevent them from being extradited” and by creating networks for travel for abortion and centers for abortion care, says Rebouché.
“The inevitable reality is that even though there is legal liability at stake, mailing abortion medication and administering those pills at home can be really hard to detect,” she adds. “Some states will try to enforce [abortion bans] but others will not because it won’t be worth the cost and it’s going to be difficult to do.”
