“This is just not going to be stoppable,” said Gerald Rosenberg, a law professor emeritus at the University of Chicago law school.
This workaround will probably become another front in the battle over abortion rights.
Residents of Texas and about two dozen other states with sharp limits on abortions have already helped fuel the boom in medication abortions, as patients seek alternatives to surgical abortions at a clinic, advocates say. Another factor driving the trend has been coronavirus lockdowns, which limited face-to-face visits at medical facilities. Americans are more comfortable receiving medical care by Zoom-style video links, which allow doctors to prescribe and direct patients on how to take the pills from outside the borders of states that are hostile to abortion.
Mifepristone, sold under the brand name Mifeprex and also known as the abortion pill, was approved by the Food and Drug Administration in 2000 for medication abortion. The drug is used with a second pill, misoprostol, to induce what is essentially a miscarriage. Mifepristone blocks the hormone progesterone, which is needed for a pregnancy to progress. Misoprostol, taken 24 to 48 hours after mifepristone, causes cramping and bleeding and empties the uterus. The medication is approved as safe and effective for use in the first 10 weeks of pregnancy, although it is sometimes used “off label” after that.
There is no FDA requirement that the medication be taken in a clinical setting, and most patients already take it at home. Mifeprex is made by Danco Laboratories. A generic version is made by GenBioPro. Misoprostol is a common generic that is also used for stomach ailments.
In December, the FDA made permanent a covid-era policy allowing abortion pills to be prescribed via telehealth and distributed by mail in states that permit it. Even before the FDA action, abortions induced by pills rose to more than 54 percent of all U.S. abortions in 2020, according to the Guttmacher Institute, a research organization that supports abortion rights.
Still, physicians seeking to prescribe pills in states with limited access are facing a patchwork of restrictions, rules and bans on telehealth prescribing of abortion pills. The legal skirmishing promises to continue.
“Mailed pills are hard to police,” said Rachel Rebouche, interim dean of Temple Law School. “That has not stopped [states] from trying.”
The latest action on abortion legislation across the states
The bans in 19 states for the use of telehealth for medication abortion typically require the patient and provider to be in the same room, according to Guttmacher. Some of these states have additional restrictions on medication abortion. For example, a few states — Arizona, Arkansas and Texas — ban the mailing of the pills. Texas has limited provision of medication abortion to 49 days. Indiana has banned medication abortion at 10 weeks. Kentucky, Montana, Oklahoma and South Dakota have enacted similar restrictions, but those restrictions are not in effect because of ongoing court cases.
The political environment threatens to pit state against state. Republican lawmakers in Missouri are considering a proposal to criminalize abortions that take place out of state. A Democratic bill advancing in the California legislature would protect patients and health-care providers from civil penalties in states that ban the practice. Another bill would protect the California licenses of abortion providers who offer care via telehealth in jurisdictions where the service is illegal.
In Alabama, Republican state Rep. Andrew Sorrell, sponsor of legislation that would ban abortions using pills, said overturning Roe would allow for the enactment of a 2019 state law making it a crime for a doctor to perform virtually any abortion. The law, which has been blocked by court challenges, would stop most, but not all, use of abortion pills, he predicted.
“If you make it harder on people to get an abortion, there will be less of them. It won’t save every baby. I don’t think that’s realistic,” he said. “Anything you make illegal there’s going to be a black market for. There’s a black market for drugs, there was a black market for alcohol during Prohibition.”
In cases where local rules restrict access to pills, some patients are turning to overseas online pharmacies selling generic abortion medication manufactured in India and China. Vendors say those pills are the same quality as those sold in the United States, but their importation has not been approved by the FDA.
Another drawback for buyers is that overseas shipments can be slower than domestic, an important factor for a method of abortion that is most effective if it is used within the first 10 weeks of pregnancy.
Rebecca Gomperts, a physician and abortion rights activist who provides online abortion pill service through her Aid Access clinic in Austria, sources shipments of generic pills to U.S. patients from pharmacies in India. The packages arrive on doorsteps in the United States in five to 15 days, she said.
She said she expects a surge of women seeking abortion pills from her service if the Supreme Court overturns Roe, based on the experience in Texas. Texas approved a law in September that outlawed abortions after fetal cardiac activity can be detected, which is about six weeks into a pregnancy.
“We’ve seen it already. When the Texas law became effective in September, we saw an incredible increase,” Gomperts said. Aid Access also offers “advanced provision” prescribing, for those who want to order abortion pills and keep them in reserve for a possible future need.
In 2019, the FDA issued a warning letter to Aid Access, ordering it to cease its operations. “The substitution of unapproved drugs for FDA-approved prescription drugs poses significant health risks to U.S. consumers,” the FDA said in its letter.
But with rising demand from American women with shrinking options, the site has continued to operate.
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Data published by University of Texas researchers in the Journal of the American Medical Association, who were given access to Aid Access volume statistics, found that requests for pills jumped from a baseline of about 11 a day before the law passed, to 137 per day in the first week after passage. From October through December, requests were nearly 30 per day, the researchers said.
“The need for abortion will not go away,” said Abigail Aiken, an associate professor of public affairs at the University of Texas at Austin who was the lead author on the research. The result of state restrictions on medical abortions, she said, will lead to “an increase in self-managed abortion, outside the formal health-care setting. What we have seen is that every time states move to restrict abortion, there is an increase in self-managed abortions.”
An online source of abortion pill information maintained by abortion supporters Plan C lists links to five online pharmacies, which it says are based in India. Plan C periodically conducts test shopping to make sure the pharmacies are performing as promised. In 2017, when it first provided the listings, Plan C commissioned tests of the drugs to verify they contained the correct ingredients, said Elisa Wells, an abortion rights activist and co-founder of the site.
“These laws that state legislators are trying to pass aren’t going to stop abortion. They are just going to change how people access abortion,” she said. She said the FDA has not threatened any action against Plan C. “We’re providing information, not providing a medical service. And we think this is some of the most important information that people can have in the face of the injustice that is happening with respect to abortion access in our country.”
On Tuesday, the day after Politico published the leaked draft Supreme Court ruling that would overturn Roe, Plan C’s website drew 27,000 online visitors, Wells said.
Abortion activists have begun searching for domestic workarounds to help patients access the medication. People seeking an abortion in a state where medication abortion is banned can get prescriptions mailed to an address in a state where the procedure is legal, then pick them up and return home, said Melissa Grant, chief operating officer at abortion telehealth service carafem.
Doctors can prescribe misoprostol, one of the two drugs used in medication abortions, for other purposes, namely ulcer prevention. State restrictions could lead doctors to administer the medication or patients to seek it out claiming it is for other conditions, experts said.
In many cases, enforcing bans on medication abortion could be nearly impossible. States that ban shipments of the drugs do not have the authority to search mail items, said James Campbell, an attorney and expert on postal regulations. If the FDA has approved a medication, he said, mailers can’t face federal legal consequences for sending it out but could run afoul of state regulations.
“I think the general rule is that the Postal Service is just going to operate regardless of what the state rules are,” Campbell said. “That doesn’t mean that if the Postal Service delivers some kind of illegal package to somewhere in the state, the state can’t outlaw possessions of illegal materials.”
A call, a text, an apology: How an abortion arrest shook up a Texas town
For those whose pregnancies are beyond what is considered best for medical abortions, clinical abortions will remain in demand, according to researchers. In Texas, activists are raising funds to help low-income people travel to states where abortion is legal.
Supporters of abortion are also bracing for possible cases of prosecutions against women, said Dana Johnson, a University of Texas PhD candidate and abortion access researcher.
Last month, a 26-year-old Texas woman was arrested and charged with murder after what authorities described only as a “self-induced” abortion. But the local district attorney dropped the charges days later, saying the woman broke no laws. Johnson cited that as an example of local antiabortion laws being “weaponized” against individual abortion seekers, although no wider trend appears to have developed.
Some abortion activists said a Supreme Court decision to strike down Roe could turn up the pressure on the FDA to allow the sale of mifepristone and misoprostol over the counter rather than by prescription.
“There’s an accumulating body of evidence that medication abortion can be done safely and effectively by people really on their own,” said Daniel Grossman, a professor of obstetrics and gynecology at the University of California at San Francisco. With increasing self-management of medication abortions, he said, “it’s reasonable to think that one day they could be available over the counter. They meet many of the FDA criteria for [over the counter] sale.”
An over-the-counter abortion pill would shatter much of conservative states’ regulatory regimes over medication abortion by letting it be sold as easily as aspirin, eliminating the need for physician involvement, which is the key focus of the current state restrictions.
But many drug safety experts say it is unlikely the FDA would approve such a change. In a few cases, heavy vaginal bleeding may require a surgical remedy, the FDA says. To reduce the risks, the agency has imposed several safety rules, including requiring that only qualified health-care providers can prescribe the medication and only certified pharmacies can dispense it. Patients are required to sign an additional consent form when receiving the medication.
“I don’t think they are likely to do that,” said Aiken, referring to a move by the FDA to make the drug available without a prescription. Besides, she said, while over-the-counter status would increase access to the drug in states without tight abortion restrictions, “I don’t know that it would have much impact in the states where abortion will be most restricted, since those states certainly wouldn’t allow OTC access and so people would still have to travel to get it.”