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Mother and daughter outside the US Supreme Court.
Roe v. Wade is dead, but the abortion debate in America lives on.
Since it became clear two months ago that the demise of the landmark 1973 decision was inevitable, the contours of the abortion debate have shifted.
Even before Roe’s reversal by the Supreme Court on Friday, access to surgical abortions – those involving a vaginal procedure – had already been severely curtailed in many parts of the country. Now they will be very difficult to obtain in at least half of all states. As a result, medical abortions – a less invasive method that involves swallowing a pill – have become the new frontier in the battle over reproductive rights and access in America.
What’s the nature of the increasingly combustible debate over abortion pills and what’s at stake?
Abortion by the numbers. Most abortions performed in the US – at least 90% – occur within the first trimester of pregnancy (up to around 12 weeks gestation). And most performed within the first trimester – around 54% – are medical abortions, meaning a woman takes medication, typically a two-pill regimen of mifepristone and misoprostol, in her home or doctor’s office.
How they work: mifepristone – the first abortion pill approved by the US Food and Drug Administration in 2000 for up to 10 weeks gestation – stops the body from producing progesterone, a chemical needed to maintain a healthy pregnancy. Misoprostol, usually taken around 36 hours later, causes contractions that help expel remaining fetal tissue from the body to avoid sepsis.
Crucially, amid the pandemic, the Biden administration lifted a provision requiring in-person consultations for medication abortions nationwide, allowing doctors to prescribe the pills during telemedicine consults before sending them directly to patients’ homes.
What do red states plan to do about it?
Now that Roe v. Wade has been gutted, giving states the power to decide laws surrounding abortion care and causing the immediate closure of abortion clinics in dozens of states, many Republican lawmakers have their sights set on banning medications that induce miscarriage.
Texas, for instance, passed a law last year banning doctors from prescribing abortion pills to women past seven weeks of pregnancy or from mailing pills to a patient at any time during pregnancy. In total, 19 states have enforced similar laws aimed at severely curtailing access to abortion pills.
Laurence Tribe, a constitutional law professor at Harvard Law School, thinks that states will go after abortion pills with gusto.
“Some states will predictably attempt to intercept FDA-approved pills sent from out-of-state medical providers and will attempt in other ways to thwart access to medical abortions in efforts to give extraterritorial effect to the moral and religious views embodied in their internal anti-abortion laws to substances and services, including telemedical advice,” Tribe tells GZERO by email.
But Tribe notes that many of the efforts “will certainly be subject to challenge under the Supremacy Clause of Article VI, the so-called ‘dormant Commerce Clause’ of the Constitution" that says states can’t place undue burdens on interstate commerce, making future litigation all but inevitable.
Still, enforcement of these rules will be tricky. Looking ahead: a medical provider who prescribes abortion pills to someone in a state where the procedure is outlawed would indeed be violating state law. So, if a Manhattan-based doctor sends abortion medication to a Dallas resident in her ninth week of pregnancy, the physician could be charged with a felony under Texas law.
But there are workarounds, and many women in conservative-leaning states have worked with medical providers in blue states to set up virtual mailboxes, making it harder for authorities to track mail routes and hand out criminal penalties.
To be sure, women living in states with severely curtailed abortion access have already been obtaining pills from European providers that work with pharmacies – many in India – to send abortion drugs to the US. But this is also a risk because, while it isn’t a highly enforced law, it is illegal under federal law for Americans to import drugs from overseas for personal use. So this is far from a foolproof solution.
Many red states say they will crack down on the abortion pill mail trade. But can they? Technically, no. The US Postal Service abides by federal law and therefore can’t seize federally approved medications sent by licensed practitioners. But given the mishmash of legalities nationally, hyper-motivated states will look for ways to produce the legal documents – such as warrants – needed to intercept mail of those suspected of abortion-related crimes.
So, what comes next? “The litigation spawned by these challenges is bound to end in the Supreme Court in the relatively near term, but not necessarily in the coming year or even two, during which the litigation is likely to be winding its way up the judicial ladder,” Tribe says.
In the meantime, the fierce abortion debate will rage on, tearing the country further apart.