Yes, abortion pills are now illegal in some states

On June 24, the Supreme Court overturned Roe v. Wade, a 1973 decision that protected the right to an abortion under the U.S. Constitution. 

Since that ruling, a number of states have enacted laws that ban or severely restrict access to abortion. In some of those states, clinics have closed and appointments have been canceled.

But a recent survey found in-clinic – or surgical – abortions are no longer the most common form of the procedure. Instead, medication abortions that use pills account for the majority.

Several viral posts on social media claimed that pills could be a way around the Supreme Court ruling and abortion bans that followed, though others said just because the pills may still be obtainable doesn’t mean they’re still legal everywhere.

THE QUESTION

Are abortion pills now illegal in some states?

THE SOURCES

• Amy Merrill, Digital Director and Co-founder of Plan C
• Greer Donley, Professor of Law at University of Pittsburgh
• Repro Legal Helpline
• Merrick Garland, U.S. Attorney General

THE ANSWER

Yes, roughly a dozen states have banned nearly all abortions, including those conducted via pills. But advocates for abortion rights say enforcing a ban on pills will be difficult, and there will still be ways to access them illegally.

WHAT WE FOUND

The drugs used for medication abortions are mifepristone and misoprostol. Taken in a certain sequence within the first 10 weeks of pregnancy, they are FDA-approved for ending a pregnancy in a process that’s described as similar to a miscarriage.

The medications come in pill form and can be obtained via prescription. Following a regulatory change by the FDA in 2021, federal law allows those prescriptions to be made by doctors via telehealth appointments and sent in the mail to patients in their state. However, some states have laws on the books requiring an in-person doctor visit.

Bans covering all types of abortion, including abortion by medication, have already gone into effect in roughly a dozen states, largely in the South and Midwest. Some bans start at conception and some start at six weeks of pregnancy (research shows most people don’t realize they’re pregnant until between weeks four and seven). A few of these bans have been temporarily blocked by the courts. Bans in roughly a half dozen additional states will likely take effect later in the year.

Many of the bans criminalize the procedure by prosecuting doctors and providers, not people seeking abortions. (Though at least one state, Texas, allows individuals to sue in civil court anyone who seeks or assists with an abortion.) This has already resulted in many clinics having their licenses revoked, shutting down, and canceling appointments.

It is also illegal for doctors in those states to prescribe abortion medication via telehealth appointments. And doctors aren’t allowed to practice outside the state in which they’re licensed, including via telehealth.

“Doctors and medical providers can only practice in the states where they're licensed, and the states where there are restrictions against telehealth abortion would… obviously prevent a provider in that state from providing telehealth abortion,” said Amy Merrill, co-founder of Plan C, an organization that provides information about obtaining abortion pills by mail.

That means, in the growing list of states with abortion bans, there is currently no legal way to obtain an abortion pill. But abortion-rights advocates say there are ways to get around those bans, methods that have been used by women in highly-restrictive states even before Roe was overturned.

LEGAL RISKS

Many people choose to self-manage their abortions, meaning taking the pills outside a clinical setting. As state abortion bans begin taking effect – and court and political battles continue – methods of enforcement against and consequences for self-managed abortion still remain largely unclear.

The Repro Legal Helpline says “we are not aware of anyone being arrested or investigated just for ordering abortion pills online,” but that does not mean it’s an option free of legal risk.

“We know of at least four cases where people who ordered abortion pills online were later charged with crimes for having an abortion. In these cases, they were charged with a crime when someone reported them to the police, or when fetal remains from their pregnancy were found and reported,” the Helpline states on its website.

That’s why experts warn people seeking abortions to limit who they tell.

“Over the past few decades, people have been prosecuted for trying to self-manage their abortions in a variety of ways, but many state abortion bans right now have exceptions to not go after the pregnant person. We could imagine that those might evaporate after a while,” said Greer Donley, a law professor at University of Pittsburgh who focuses on reproductive healthcare. “But even with those types of exceptions on the books, states have not been afraid to go after pregnant people for self-managing abortions under laws like child abuse and child neglect.”

“We know that any potential criminalization or risk of criminalization falls hardest on communities that are already adversely impacted,” said Merrill. “This disproportionately impacts the communities that are already facing discriminatory obstacles to health care and to social services overall. These are Black, indigenous, people of color, the LGBTQIA community, folks with disabilities, people in rural areas, undocumented folks, and those who are just struggling to make ends meet.”

AID ACCESS

Abortion rights advocates often refer people in highly restrictive states to an organization called Aid Access, which facilitates telehealth appointments with doctors in Europe. The doctors prescribe abortion pills which are shipped by mail from an Indian pharmacy directly to the patient in the restricted state.

“The team at Aid Access…already recognizing the barriers that exist in restricted states…has been doing telehealth and online consults since 2018,” said Merrill. “They also are offering advanced provision of pills, meaning pills in your medicine cabinet…even for people who aren’t pregnant…hey can order pills in advance to just have on hand, and those don't start to degrade for about two years.”

It’s still illegal for foreign doctors and pharmacies to operate in states where they don’t have a license, but it’s all but impossible to prosecute.

“Under the Trump administration, the FDA tried to go after Aid Access,” said Donley. “It was unsuccessful, because it’s very hard to go after international actors, but it tried.”

In 2019 the FDA warned Aid Access to stop sending generic misoprostol and mifepristone to the U.S. The Austrian-based doctor who runs the organization refused, and the FDA took no further action.

“It’s the same medication, it’s still mifepristone, but it’s being sent from an international pharmacy, where the packaging is different than the packaging in the United States,” said Donley.  “Because the packaging is different, the drug is not technically FDA approved.”

The Repro Legal Hotline, an organization providing legal assistance to people who seek abortions, also says “when pharmacies are in other countries, they are usually not allowed to send prescription medicine into the United States. But the government does not, at this time, enforce that law against people who order prescription medicine just for their own use.”

ONLINE PHARMACIES

A similar, even less regulated, method is purchasing abortion pills directly from internet pharmacies. These sites may ship pills in the mail and do not require or offer telehealth appointments, meaning patients can obtain their drugs without prescriptions.

The FDA warns that such sites pose a scam risk. Plan C has a list of sites it has test-ordered abortion pills from, but says even those sites aren’t always sure things when it comes to receiving genuine medication.

“The services we list all shipped pills to us at our home addresses. They are not scams,” the Plan C site read. “But, we do not operate these sites and cannot guarantee they will be reliable in the future.”

Experts say for most people, self-managing an abortion without any clinical support is statistically safe.

“The risk factors are very low, it really is an extremely safe method,” said Merrill. “There will always be people that do need in person care, and that's why we continue to fight and push for access to all a full range of options to care… [But] we continue to see lower numbers than expected of people who actually seek after-care or have questions in follow-up. The percentage is higher of folks that get what they need, get the information they need, get the access they need, go through the experience, and then continue on and don't require follow-up care.”

MAIL FORWARDING

A more logistically complicated way to obtain abortion pills in states that ban them or ban telehealth appointments is to have pills sent to a virtual mailbox, friend’s address, or post office and then either have the package forwarded or drive to pick it up.

Plan C says this process consists of scheduling a telehealth appointment with a doctor licensed in a state where abortion is legal, and then providing a shipping address in that state.

This option presents unpredictable challenges, since some providers may insist you attend the appointment from their licensed state, even if it’s via telehealth. But Plan C says some providers are less likely to seek location verification.

OUT-OF-STATE PRACTICE

Even though it’s illegal, some doctors in states that allow telehealth abortions may try to provide such care to patients in states that ban them, some abortion rights advocates say.

“Activists and politicians and folks who deeply understand these policies [are] starting to look for ways to protect telehealth providers in states that are very abortion friendly and that are ready to take a stand,” said Merrill. 

Some states like Connecticut have already passed laws aimed at protecting abortion providers from out-of-state legal action. However, those laws do not presently mention interstate telehealth abortions; Merrill says that may be explored in the near future.

“I would say that's going to be an area to watch,” she said. “Can the attorneys general, can the medical boards… protect telehealth providers to give care in states where these unjust bans exist?”

FEDERAL DEFENSE OF ABORTION PILLS

Immediately following the Supreme Court decision, U.S. Attorney General Merrick Garland issued a broad statement of support for abortion rights.

In it, he specifically stated “the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”

He did not outline a legal mechanism for how the federal government would or could prevent such bans. But one has been proposed by some legal experts, in which the federal government would take states to court and assert that federal law – in this case the FDA’s approval of abortion pills as safe and effective – preempts state laws.

“The Constitution says that federal law trumps state law when the two conflict,” said Donley. “So the question here is whether or not the FDA approval… is strong enough that it becomes not only the national floor, in other words states cannot loosen FDA’s regulations, but also the national ceiling, in other words states cannot impose additional barriers to accessing this drug.”

Such attempts would involve an extensive court battle, during which violators of the state laws could potentially still face punishment.

“It's a novel theory [and] it has merit, but also there are counter arguments against it, and the courts would have to work them out,” said Donley.