With the Supreme Court set to overturn Roe v. Wade next summer and draconian restrictions like Texas’s Senate Bill 8 proliferating, medication abortion has been framed as a silver bullet for abortion access, from The New York Times to Shout Your Abortion’s recent social media campaign encouraging users to “Help us spread the word: no matter what SCOTUS decides, we can and will use #AbortionPillsForever.” The two-drug regimen of misoprostol and mifepristone can be obtained via mail with an online consult from various organizations and administered at home in the first 11 weeks of pregnancy. Aid Access, founded by the Dutch physician Rebecca Gomperts, will even send abortion drugs to American patients before they’re pregnant and regardless of their state’s abortion laws, news cheered by Jezebel in story headlined, “You Can Now Order Abortion Pills Before You’re Pregnant in All 50 States.”
But can you? In light of the dire legal landscape, and with the FDA now allowing mifepristone to be delivered by mail, heightened interest in self-managed medication abortion is no surprise. But the reality of using remote prescribing services isn’t as simple as the bouncy headlines imply. Thirty-four states restrict access to medication abortion or ban it altogether, and physicians aren’t supposed to prescribe the pills across state lines, so seeking a medication abortion online remains legally murky and more logistically challenging than much of the messaging suggests.
The safety and efficacy of misoprostol and mifepristone are well documented, and the drugs represent a much safer route to self-managing an abortion than the options that came before. It’s getting them that’s the issue.
“I think that’s more complicated than it’s being made out to be,” said Dr. Sarah Prager, an abortion provider based in Seattle. Prager pointed to Aid Access as a model for ordering the drugs with physician involvement: The service prescreens patients, then prescribes and mails abortion drugs for between $110 and $150. That cost is about a quarter of what a surgical abortion costs on average without insurance.
But six states have laws against virtually prescribing abortion drugs or sending them by mail. And Prager said that idea of crossing state lines to seek out medication abortion where it is accessible—something The New York Times recently suggested would “significantly expand” abortion access—didn’t seem any more practical for patients than traveling for care in-clinic, something that already happens routinely in states like Texas, where patients seeking abortions now drive an average of 247 miles one-way since the implementation of S.B. 8. (Texan abortion-seekers have historically crossed into Mexico to buy abortion pills, too, where misoprostol is sold over the counter as a generic or under the brand name Cytotec.)
In Texas, where S.B. 8 bans abortions after six weeks, mailing or otherwise providing abortion-inducing drugs is a crime that could result in jail time for providers; doctors like Alan Braid have openly flouted these extreme laws, but most have not.
Laws like Texas’s focus criminal responsibility on providers and anyone who helps someone else access abortion, not the person who has the abortion. Because mailing abortion pills to a state like Texas is “theoretically prosecutable,” said Prager, a patient seeking care outside the reach of the Texas law would need to drive to another state, have a telehealth appointment, secure a P.O. box or local address to receive the medication, and either wait for the drugs to arrive or return home and come back later. “So that’s not actually super simple, and certainly wouldn’t be faster, necessarily, than going to a clinic on a day that they have an appointment and just taking the medication there or having an aspiration procedure there,” she said. (Another practical matter is insurance: In Washington state, where Prager practices, providers can’t bill for certain telehealth patients if they’re from out of state, and patients might need to pay out of pocket.)
How likely is a scenario where Texas prosecutes a person who orders and uses pills from a group like Aid Access? It’s not inconceivable, although to date, it’s been exceedingly rare. According to the reproductive justice law group If/When/How, five U.S. states currently have laws criminalizing self-managed abortion, but even without them, “politically-motivated police and prosecutors may try to misuse other criminal laws to target people who self-manage abortion.”
Gomperts, who has pioneered advance provision for medication abortion in the United States, is no stranger to finding creative ways around legal complexities. Before Aid Access, she founded Women on Waves, an organization that provided reproductive health care on a ship that would dock outside abortion-hostile countries. Once the ship entered international waters, it was officially under the jurisdiction of the Netherlands, where abortion is legal.
Gomperts has insisted that Aid Access is legal, too, and that the organization provides instructions for people in abortion-hostile states and countries that don’t allow medication abortion to order via foreign pharmacies. But that does carry a risk, even if now it seems small. “To date, no one has been prosecuted just for ordering abortion pills, obtaining a prescription online, or trying to get a prescription filled at a pharmacy,” reports If/When/How. “Nonetheless, evidence of having purchased abortion pills online has been used against people charged with other crimes related to self-managed abortion.” In a 2013 case in Pennsylvania, for example, a woman was criminally charged for ordering mifepristone and misoprostol online for her daughter; she was reported to Child Protective Services by medical staff at the hospital where she’d taken her daughter for follow-up care.
In April, the Food and Drug Administration temporarily lifted a component of its Risk Evaluation and Mitigation Strategy, or REMS, that had prevented mifepristone from being sent through the mail. Medication abortion counseling and prescriptions thus became available via telehealth. Prager said that lifting the REMS entirely would have been more helpful, because it would open the possibility of mifepristone being widely available at pharmacies, or maybe even over the counter, as it is in other countries. (If mifepristone were accessible over the counter, Aid Access’ advance provision model really could be mainstream.) Still, when the FDA’s rule-change became permanent in December, news outlets framed it as a major expansion of reproductive rights.
But that expansion had already happened with the agency’s move in April. In clinics that had been providing medication abortion through telehealth for months, said Prager, the FDA’s announcement had “zero” impact. Providers had already been doing this work; the FDA’s announcement simply meant it could continue. It was not a new explosion of access, but media accounts made it seem that way, as outlets that rarely covered abortion ran with the news.
If Roe v. Wade is overturned this summer, a similar distortion is likely to occur. Medication abortion may once again be framed as the key solution to gaps in care. And for some patients, it absolutely will be. But for abortion access to be truly broadened in a country that criminalizes poverty and pregnancy, a systems-level change is needed: one that extends beyond the contents of blue-state medicine cabinets and invites a wholesale reimagining of how we treat the rights of pregnant people.
For providers like Prager, this would mean rescinding laws that prioritize the wellbeing of a pregnancy over a person. With their roots in American chattel slavery, which cleaved the interests of enslaved pregnant people from their pregnancies, these laws are often used to criminalize low-income people of color who happen to live in abortion-hostile states, like Rennie Gibbs, who in 2014 was charged with “depraved heart murder” for delivering a stillborn baby and having a history of cocaine use.
Neither had anything to do with the other, and that was the point. Cases like Gibbs’ are not about protecting a child’s safety, and neither are laws limiting abortion access. They’re about keeping people afraid. “Fear in and of itself is a barrier,” said Prager, “because if people think it’s illegal, then either as providers or as patients, they may not seek it out.” The irony is that abortion advocates’ emphasis on pills is aimed at ending that chilling effect by promoting them as a safe, legal option. But unless we are realistic about the damaging legacy of criminalizing self-managed abortion, and its disproportionate impact on marginalized communities, access will remain far from equitable.