Several states, including Arizona, Arkansas and Texas, have sought to stem the flow of abortion pills by making it illegal to ship them through the mail. Republican lawmakers in Missouri are considering a bill that would ban Missouri residents from getting out-of-state abortions and penalize out-of-state medical professionals. Model legislation recently released by the anti-abortion organization Right to Life would make it a criminal offense to help a minor obtain an abortion across state lines.
These moves by emboldened conservatives raise fears that cross-border investigations targeting abortion will test traditional law enforcement cooperation between states.
In response, liberal governors and legislatures are erecting legal countermeasures. California Governor Gavin Newsom (D) on Friday signed a bill to protect patients and healthcare providers from civil penalties sought by states that ban the practice. Another proposal would protect the California licenses of abortion providers who offer care via telehealth in jurisdictions where the service is illegal. The governors of Washington and Oregon joined Newsom in declaring a West Coast ‘commitment to reproductive freedom’, citing plans to enact more sweeping protections, including refusing to extradite people to states banning abortion.
And hours after the Supreme Court ruling, Massachusetts Gov. Charlie Baker (R), a moderate Republican, issued an executive order barring state officials from assisting other states’ investigations into claimants, lawyers and patients who obtain abortion services.
The divergent approaches threaten to deepen regional divisions on abortion that had been somewhat mitigated by Supreme Court precedents that established abortion as a constitutional right.
“We haven’t seen this kind of battle over … the scope of one state’s jurisdiction over another in a very long time,” said Wendy Parmet, director of Northeastern University’s Center for Health Policy and Law. . “Nothing of this magnitude have we seen since the Civil War.”
Republican-controlled states are also setting up potential constitutional showdowns by banning abortion pills, which directly conflicts with drug approvals by the US Food and Drug Administration.
“Over the next few months, it will be total chaos. Each state has different laws at this point,” said Greer Donley, assistant professor of law at the University of Pittsburgh and co-author of an in-depth analysis of the post-roe deer Legal issue. “Patients are going to be totally confused trying to figure out where to go. Clinics that remain open will be inundated with out-of-state travelers. It’s going to be a total, total mess.
Abortion pills’ relative ease of use and ability to be mailed make them central to emerging legal battles.
The gray market for abortion pills is expected to grow, as lawyers and patients arrange for hard-to-detect shipments to be mailed to abortion-banning states. More than half of abortions in the United States are already performed with the drugs mifepristone and misoprostol, which together are called the abortion pill. They should be used within the first 10 weeks of pregnancy. The pills can be obtained at abortion clinics, but are increasingly being sent through the US Postal Service, especially as Republican states have passed laws that have forced abortion clinics to close.
The FDA requires mifepristone to be dispensed by a supplier, not a pharmacy. The agency increased access in December by making permanent a pandemic-era rule that allows telehealth prescribing and mailings.
Yet even using telehealth links, doctors are limited to prescribing drugs in states where they are licensed to practice. This prompts activists and patients to implement elaborate workarounds, where pills are first sent from the supplier to an address in an abortion-friendly state, then delivered to the patient in an anti-abortion state. by a friend or relative.
Under emerging laws in states prohibiting abortion, such maneuvers could expose everyone in the supply chain to lawsuits, investigations, and possible lawsuits. Even providing information to patients on how to get the pills out of state could soon be illegal in some states, experts say.
Some states might treat abortion pills as contraband, banning their possession and treating them as dangerous substances.
“Many states will treat chemical abortion pills the same way they treat other toxic substances that harm and end life,” said Roger Severino, vice president of domestic policy at the right-wing think tank Heritage Foundation. “Although the courts have not decided the issue, pro-life states like Texas will not stand idly by while abortionists in ‘sanctuary’ states like California flood their citizens with these dangerous drugs, and they will not shouldn’t either.”
Some anti-abortion lawmakers told the Washington Post they would support those efforts.
With the closure of legal distribution channels, “then the pills are going underground like they would any other illegal drug, and I guess that would be investigated,” the rep said. Louisiana’s Danny McCormick (R), who sponsored the legislation in his state. who would qualify abortion as murder.
But banning abortion pills can also be the subject of legal action by the federal government. Attorney General Merrick Garland released a statement on Friday reinforcing the Justice Department’s view under the Biden administration that FDA approval of the pills means they should be available in all 50 states.
“States cannot ban mifepristone because of disagreement with the FDA’s expert judgment on its safety and efficacy,” Garland said.
Abortion patients and advocates are already tapping foreign sources online to obtain pills, through websites such as Plan C, which offers links to generic Indian pharmacies, and AidAccess, with Austrian-based prescribers. The FDA warns against such importation for personal use, but has not called for sanctions against individuals for doing so.
“The practical reality is that it’s really difficult for states to monitor mail that enters and exits their borders,” Donley said. “A lot of people shipping these pills right now are international players and so far states have been totally unable to do anything about it because they have no jurisdictional reach outside of the country.”
Illinois, an abortion-friendly state surrounded by states that ban or are likely to ban the procedure, is likely to become a flashpoint for cross-border disputes between states.
Across the Mississippi River in Missouri, a so-called “trigger ban” law banning abortion automatically went into effect as soon as the Supreme Court struck down Roe v. Wade. This forced Planned Parenthood’s last abortion clinic to close on Friday.
“We’ve reached the end of the line for abortion care” in Missouri, Yamelsie Rodriguez, president and CEO of Planned Parenthood in the region, said in a Friday press call shortly after. informing Missouri health authorities that the clinic had closed.
Now, she said, the attention of abortion advocates in the region would shift across the Mississippi River to Illinois, where providers are bracing for increased demand from residents. from Missouri. In Illinois, she said, providers have also seen an influx of patients from Texas, Oklahoma, Arkansas, Louisiana and Florida in recent weeks.
The Illinois House of Representatives has passed a bill that would prevent state action against the medical licenses of providers who provide services to patients who reside in abortion-banning states. After the Supreme Court’s decision on Friday, Illinois Governor JB Pritzker called for a special session of the state legislature this summer to strengthen protections for abortion providers from potential lawsuits and investigations. out of state.
Even with such protections, law enforcement could intercept and inspect packages with probable cause and a warrant from a judge — a common practice in narcotics cases, for example.
“If you’re the Connecticut doctor … if you’re committing what you know is a crime in Texas, you’re going to put as little information as possible on the envelope,” said Mary Ziegler, a law professor at the University of California Davis. “As long as your condition says it will protect you, doctors aren’t going to put themselves at unnecessary risk.”