Abortion by Mail Fight Next
Terry H. Schwadron
Dec. 21, 2021
Last week’s decision by the Food and Drug Administration (FDA) to allow patients to receive abortion pills through the mail rather than requiring in-person medical permission feels as if it is going to keep bouncing through our legal systems and culture wars.
Already, we have Texas pushing back with a new law took effect the week before that adds penalties of jail time and a fine of up to $10,000 for anyone who prescribes pills for medication abortions through telehealth or the mail.
Sacrilege or not, it’s almost as if all anti-abortion laws must be passed within six weeks of a government order, a parallel to Texas Republican-majority state legislative attitudes about legal abortion altogether.
So, even as the federal government is doubling down in the face of looming attempts to get the U.S. Supreme Court to rewrite history and eliminate the Roe v. Wade decision through a Mississippi case under review and abort legal abortions, the states are getting early bets in on the workarounds.
A Supreme Court hearing still looms on the Texas bill that makes all abortions illegal six weeks after conception, before many women know they are pregnant — and finds itself in court over the vigilante means of enforcement being used. This new law sets criminal penalties for medication abortions via telehealth or mail that already were illegal in that state.
Legal Issues Remain
There are lots of fascinating legal corners in these debates, including under which Constitutional clause to hang justification for one’s position, but there is little practical difference.
One way or another, the newly conservative Supreme Court majority is handing jurisdiction over legal abortion policy to states, where Republican majorities in half the country are aiming to eliminate the right altogether.
All of which has made a decision by the FDA basically over whether to make it easier or harder for women to get medication abortion pills through the mail more critical. The FDA action means that medication abortion, an increasingly common method authorized in the United States for pregnancies up to 10 weeks’ gestation, will become more available to those who find it difficult to travel to a legal state or prefer to terminate a pregnancy in their homes. It allows patients to have a telemedicine appointment with a provider who can send them to the patient by mail.
The FDA had done so temporarily during the pandemic; last week’s decision makes it permanent and will serve to wave the red flag anew before anti-abortion forces. There are 19 states, mostly in the South and the Midwest, that ban telemedicine visits for medication abortion, and five other states have passed laws against sending abortion pills through the mail. A few states like California and New York likely will increase availability.
The Guttmacher Institute keeps track of state-by-state laws.
The Predictable Politics
Predictably, the Susan B. Anthony List, an anti-abortion group, said that the Biden administration was putting patients at risk without necessary medical oversight, as well as killing fetuses. Just as predictably, there is nothing coming from Congress to clarify or buttress either individual rights or moral certainty.
Medication abortions usually requires two pills, taken 48 hours apart, that manipulate the hormones to end a pregnancy at home. Medication abortion accounted for more than one-third (39%) of all abortions in the United States in 2017, and it is seen as less invasive. Decades of clinical evidence suggest that medication abortion can even be provided without laboratory tests or ultrasound prior to administration, opening further possibilities for service delivery.
By criminalizing the use of telehealth and mail-order prescriptions to acquire abortion pills, Texas seeks to forestall a possible workaround to its shrinking number of reproductive health clinics. Since Texas signed the abortion-limiting laws, surrounding states have reported an increase of abortion visits and requests for medication abortion pills.
So far, no lawsuit has challenged Texas’ law restricting access to abortion pills. Mounting a legal challenge to halt the law is complicated because determining legal standing to sue would likely be difficult for any Texas plaintiff.
Meanwhile, The Guttmacher Institute published an interesting profile of who has gotten abortions since 2014, numbers that have been on the decline for 20 years. Generally, half of those seeking abortions are in their 20s and 30s, often with a child already, in a map that follows states with availability.