[The reality is that abortion pills will be available to people
in the United States — no matter what the Supreme Court does and
regardless of whether states give permission.]
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ABORTION PILLS WILL CHANGE A POST-ROE WORLD  
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Greer Donley, Rachel Rebouché and David S. Cohen
June 23, 2022
New York Times
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_ The reality is that abortion pills will be available to people in
the United States — no matter what the Supreme Court does and
regardless of whether states give permission. _

Abortion pill, credit: VAlaSiurua (CC BY-SA 4.0 license)

 

_Update: On Friday the Supreme Court __overturned Roe v. Wade_
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eliminating the constitutional right to abortion._

Before Roe v. Wade was decided in 1973, millions of Americans found
ways around state laws so that they could get abortions. Too
many were forced
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rely on unsafe methods — whether that was a “back alley”
provider or a knitting needle at home — resulting in injury,
infertility and even death.

With Roe likely to be overturned in the coming days, it’s important
to remember the stories of what came before. But it is just as
important to acknowledge that the coming reality will be different.
With the growing popularity of abortion pills, many of the people who
live in anti-abortion states and can’t travel will still be able to
obtain safe abortions
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often without the direct involvement of a medical provider and within
the privacy of their homes. Regardless of what the Supreme Court
decides in Dobbs v. Jackson Women’s Health Organization
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the case that could undo Roe v. Wade, abortion pills will keep
abortion accessible for countless people. But certain steps will be
necessary to increase access and to ensure safe distribution.The most
common medication abortion protocol in the United States — the one
that the Food and Drug Administration has approved for up to 10 weeks
of pregnancy — involves two drugs, mifepristone and misoprostol,
taken successively over two days. This past December
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the F.D.A. removed the restriction that had prevented these pills from
being mailed to patients. This development will continue to assist
patients in states where telehealth for abortion is currently legal
— that is, where a patient can receive screening, counseling and
instructions on how to take the pills from a medical provider online,
without ever needing to step foot in a clinic.

But there are options for people who live in the rest of the country,
too. Medication abortion delivered through the mail opens up
possibilities for cross-border care, even if that care is outlawed in
the patient’s state. Already, people can and do obtain abortion
pills by all sorts of means — often delivered through the mail, and
without the involvement of a U.S. abortion provider — even though
some of those methods carry legal risks.

The recent experience of Texas residents demonstrates that large
numbers of pregnant people will find a way to get abortions, no matter
what the law says_._ Even though last September the state banned
abortions after roughly six weeks of pregnancy, in the following
months the abortion rate fell by only about 10 percent
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One reason is that Texans traveled to clinics in other states, but
another reason is that larger numbers obtained pills for early
abortions online, through organizations like Aid Access
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pharmacies.

So what’s stopping abortion pills from completely undoing
anti-abortion efforts in a post-Roe America? For one thing, some
patients aren’t candidates for medication abortion, and others lack
the digital know-how or technology to obtain the pills. But even
beyond that, there are significant roadblocks.

First, many Americans do not know what medication abortion is
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This will have a human cost, as studies
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that people often try to self-manage their abortions with much less
safe or effective methods than abortion pills, including physical
trauma.

Moreover, people have to know how _to find and use _medication
abortion. For those seeking pills outside of a traditional health care
setting, people will have to locate legitimate pharmacies shipping the
right medications. And as with any medications, if someone uses them
incorrectly — for instance, when they are contraindicated —
complications can arise. Advocates and websites like Plan C
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the Miscarriage and Abortion Hotline
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information. But knowledge gaps, which characterize so many of our
health care sectors, are an especially big problem for medication
abortion, in part because of stigma and the threat of punishment.

To the last concern, while abortion pills are safe and effective to
end most early pregnancies, taking them in the face of a state
abortion ban involves legal risks. The criminalization of pregnancy
is not new
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especially for people of color and low-income people, but it will
rapidly escalate without Roe_. _Anti-abortion states know that they
cannot stop medication abortion from entering their states or shut
down the out-of-state actors who ship it — though they will
certainly try
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in-state providers to target, anti-abortion legislators and
prosecutors may target patients, as happened recently in Texas,
where Lizelle Herrera
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arrested and charged with murder in connection with an alleged
self-induced abortion. (The charge was later dropped because the
prosecutor acted outside the scope of the state’s current law.)

The anti-abortion movement is likely to continue to deploy another
longstanding tactic: deceiving people
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Already, one in 10 Google searches
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abortion services in states likely to ban abortion directs users
to crisis pregnancy centers
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imply that they provide abortions when their mission is actually to
block people from getting abortions. Expect anti-abortion activists to
set up websites
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to sell abortion pills or even selling fake abortion pills. As is
often the case at crisis pregnancy centers, the hope would be that the
person will time out of the recommended 10-week window for having an
abortion with medication. More broadly, logging onto these sites may
alert anti-abortion activists to people seeking abortions who
then can be threatened with criminal prosecution
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they follow through with the abortion, whether the state officially
permits that or not.

In a post-Roe environment, how can these pitfalls be avoided? To
combat a general lack of awareness, politicians, health care
providers, advocacy organizations and average citizens need to
spread awareness about medication abortion
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places to find it
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can help if complications arise [[link removed]].
Free-speech guarantees should protect the provision of accurate
information about medication abortion, even if abortion services are
prohibited in a particular state. To increase the availability of
pills, legislators in abortion-supportive states could pass
legislation that would protect providers prescribing across state
lines who are practicing within the scope of their medical licenses.
States like New York
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enacted laws that seek to protect providers who treat patients who
travel to their states. States might think further about how to reduce
the risks of mailing pills across state lines. However, cross-border
abortion provision will never be risk-free in a country with patchwork
legality and without federal policy on the matter.

To combat policing and other restrictions of those seeking medical
abortions, Xavier Becerra, the head of the Department of Health and
Human Services, should enforce HIPAA to protect abortion seekers’
private health information. Except in defined circumstances
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under HIPAA a health care provider may not disclose protected health
information to state authorities. The department should warn health
care workers that it is illegal for them to report patients they
suspect of having had abortions unless compelled by a subpoena,
warrant or similar legal document, and it could develop new
protections that apply to patients accused of abortion-related crimes.

Beyond government regulation, criminal defense attorneys around the
country
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to prepare themselves for an onslaught of cases concerning abortion
law and pills. There are already nonprofit lawyers
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abortion is a crime in about half the country, criminal defense
lawyers will need to respond to a new set of charges against
providers, patients and, potentially, those who assist them.
Similarly, prosecutors
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follow the lead of Attorney General Rob Bonta of California, who has
urged his colleagues
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the nation not to prosecute people for pregnancy outcomes.

Finally, search and social media companies can play a role in
countering abortion pill misinformation. These companies
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policies that have tried to de-emphasize, remove or add disclaimers to
Covid-19 misinformation. Given the immense complexity of the post-Roe
legal and abortion access landscape, companies could enact similar
policies governing abortion misinformation and websites that aim to
deceive and entrap pregnant people
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They could also reconsider how they track and store people’s
location data
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which could be used to enforce abortion penalties. State and federal
regulators can play a role too, as those whose mission it is to combat
false consumer information could target pill disinformation campaigns.

Medication abortion is not a magic solution to the likely end of Roe,
but its increasing availability can blunt some of the fallout if
abortion regulation returns to the states. Because the reality is that
abortion pills _will _be available to people in the United States
— no matter what the Supreme Court does and regardless of whether
states give permission.

_Greer Donley is an assistant professor of law at the University of
Pittsburgh Law School, where her scholarship focuses on reproductive
justice, bioethics and F.D.A. law. Rachel Rebouché is a professor of
law and the interim dean of Temple University’s Beasley School of
Law, where her scholarship focuses on reproductive health, family law
and public health. David S. Cohen is a professor of law at Drexel
University’s Kline School of Law and a co-author of “Obstacle
Course: The Everyday Struggle to Get an Abortion in America.”_

_Follow The New York Times Opinion section on Facebook
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* abortion
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* Reproductive rights
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* Supreme Court
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* Roe v. Wade
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* contraception
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