Google searches for the term “abortion pills” hit an all-time high on May 3, the day Politico released a leaked draft opinion indicating the Supreme Court is likely to overturn Roe v. wade.
The two-drug regimen for medical abortion, as it’s known clinically, has been available since it was approved by the Food and Drug Administration in 2000. People have been able to get the pills through the mail since April 2021, when the fda suspended enforcement of a requirement that the first pill be administered in person. the agency made that option permanent in December.
but the possibility that the constitutional right to abortion may cease to exist has given rise to a new set of questions about whether states can legally and logistically prevent residents from obtaining and taking the pills. The picture is especially complicated, two legal experts said, given that the drugs are approved by the federal government.
“while the federal government can say, ‘no, we think it’s okay for providers to prescribe this drug,’ states can turn around and say, ‘sure, but we have the authority to regulate what providers do, and we want it to be illegal,'” said khiara m. bridges, professor of law at the university of california, berkeley.
When it comes to taking abortion pills, it’s likely “people who are pregnant can take abortion medication without criminal penalties,” even if the law is struck down, Bridges said, though “state legislatures could refine those laws.” .
But even today, accessing medical abortion is expensive and complicated in many states, and regulations vary significantly.
Obtaining abortion pills is “really difficult in much of the country, and may be legally impossible in much of the country relatively soon,” said Wendy Parmet, director of the Center for Health Law and Policy at Northeastern University.
how abortion pills work
medical abortion accounted for half of all abortions in the us. uu. abortions in 2020, up from 39% in 2017, according to the guttmacher institute, an abortion rights group.
The first pill in the regimen, mifepristone, blocks progesterone, a hormone that promotes pregnancy. the second, misoprostol, consists of four pills, usually taken 24 to 48 hours later, that induce contractions to effectively empty the uterus.
The regimen can be taken up to 10 weeks after the first day of a patient’s last period. It is about 97 percent effective at ending pregnancies, according to a 2015 review of studies. FDA regulations require that the pills be dispensed only by specially certified providers.
The entire regimen cost about $560 on average as of 2020, according to a recent study, unless covered by insurance, which varies by state and insurance provider. an abortion procedure costs about the same during the first trimester.
medical abortion is different from plan b, a pill taken within three days of unprotected intercourse to help prevent pregnancy.
a wide variety of state regulations
Most states have at least one restriction on medical abortion beyond FDA standards, according to the Guttmacher Institute.
Thirty-two states require pills to be prescribed by physicians, rather than nurse practitioners or physician assistants. nineteen require physicians to be physically present for one or more visits, effectively eliminating access by mail. (They are Alabama, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin.)
Six of those states — Arizona, Arkansas, Louisiana, Missouri, Texas and West Virginia — also made the use of telehealth for abortion access illegal as of February, according to the Kaiser Family Foundation.
in addition, texas and oklahoma passed laws allowing private citizens to sue anyone who provides abortion services or assists another person in having an abortion after detection of heart activity, about six weeks after. a pregnancy.
aid access, a nonprofit organization that provides access to abortion pills by mail, said requests in texas increased 174% in the three months after the state’s six-week ban was implemented. But in December an additional Texas law went into effect that makes it illegal to mail abortion drugs into the state.
what happens to access to the abortion pill if the decision is overturned?
overturning the decision (the supreme court decision is expected in late June) would trigger laws in 13 states that ban abortions. Those laws would make it illegal to prescribe or help people obtain abortion pills, but governments could find that part of the ban difficult to enforce, Parmet said.
“It’s going to be very difficult for states to completely prevent people within their state from accessing medical abortions,” he said. “We haven’t been very successful in preventing people from accessing all kinds of medications, therapies, illicit drugs.”
A further complication, the two experts said, is the question of whether state bans can override FDA approval.
“There is an argument, I don’t know if it wins with the current US Supreme Court, that the federal leave of up to 10 weeks would override and pre-empt the state ban of about six weeks,” Parmet said, referring to the laws in oklahoma and texas.
It’s also unclear whether states would have the legal authority to prohibit out-of-state doctors from prescribing abortion pills to their residents.
“the argument the red states are going to make is that even logging into zoom is providing healthcare. so if a provider in new york logs into zoom with someone in texas, then that provider is providing healthcare to a texas resident,” bridges said.
But, he added, “if the relaxation of restrictions around telehealth is maintained during the pandemic era, then the New York doctor should not be prosecuted.”
abortion pills are safe
Complications from medical abortions arise in only a fraction of one percent of patients, according to a 2018 National Academies of Sciences report. A more recent study, published in February, found that about 1 percent of people who had self-managed medical abortions experienced adverse effects.
However, the pills cause cramping and bleeding that can last several hours or more. (Bleeding or spotting may continue for several weeks.)
The safety of the regimen is less guaranteed if the pills are ordered from abroad, which some Texas women have done at unregulated pharmacies in Mexico, reported npr and the texas tribune.
“There are increased health risks if you take medication and don’t know where it came from,” Parmet said. “What we’re really going to have is chaos.”