A Doctor Who Prescribes Abortion Pills to U.S. Women Online Is Suing the FDA. Is She Breaking the Law?

September 19, 2019, 2:07 PM UTC

A Dutch doctor filed a lawsuit against the Food and Drug Administration last week after the agency allegedly prevented her from providing abortion pills to U.S. residents. 

The lawsuit, filed on September 9 in federal court in Idaho, accuses federal officials, including U.S. Health and Human Services Secretary Alex Azar of confiscating between three and 10 “individual doses of misoprostol and mifepristone” that Dr. Rebecca Gomperts had prescribed to patients since March. 

That same month, Gomperts received a notice from the FDA requesting that she immediately cease operations, adding that her practice “poses an inherent risk to consumers who purchase those products.”

Gomperts launched the website Aid Access in 2018 in response to a growing demand for access to medical abortion in the wake of a further right-leaning Supreme Court, following the appointment of the conservative, anti-abortion Justice Brett Kavanaugh.

With the many restrictions on abortion introduced across the country this year causing a flurry of misinformation, as well as a number of early pregnancy abortion bans, self-managed and self-induced abortion are receiving more attention. 

Patients who seek abortion pills through the website will first fill out an online consultation about their pregnancy and overall health. Gomperts will fill a prescription for patients as long as they’re healthy, less than 10 weeks pregnant, and live within an hour’s distance of a hospital in case of emergency.  

In addition to the overwhelming demand for abortions via telemedicine, Gomperts told Fortune a lot of people who have reached out to her did so because they didn’t know where to get help. Abortion funds and other advocates have expressed the same concern, leading some to make “know your rights” toolkits and workshops available to their communities.  

“People are having a hard time finding that information,” Gomperts said. Some people who reached out to Gomperts were unaware of abortion funds across the country that offer financial and logistical support to people terminating a pregnancy. “Or they find a clinic and it’s hours away, and they don’t have information,” she added. 

As a result, Gomperts has heard from 30,077 U.S. women between March 2018 and August 2019, and has prescribed the two abortion medications to 7,131 of those people, according to the lawsuit. Most requests are coming from states with strict anti-abortion laws, like Alabama, Georgia, and Mississippi. 

“People reaching Aid Access—their stories are extremely desperate,” said Gomperts. “It’s people who really have no way to access the services that are still available locally.”

Conservative, anti-abortion activists have led a huge charge at the state level to make the medical procedure inaccessible and even illegal, in direct violation of the landmark 1973 Roe v. Wade decision, which secures the federal legal right to abortion. The many restrictions introduced this year include method bans, gestational age bans, and others. 

Even so, abortion remains legal in all 50 states, which can complicate the narrative around self-managed abortion. 

What Is Self-Managed Abortion?

People have been managing their own abortions for a long time for a variety of reasons, whether by inducing a miscarriage with herbs or with pills. Herbal abortions have been around as long as pregnancy, though they are often less effective and safe than a medical abortion and must be done early on. 

Medical abortion is an FDA-approved method to end a pregnancy, and studies have found that independently managing an abortion using misoprostol and mifepristone pills is both safe and effective. 

“There is no evidence that home-based medical abortion is less effective, safe or acceptable than clinic-based medical abortion,” reads one study from the World Health Organization (WHO).

The two pills work in combination to terminate a pregnancy in the first 12 weeks. Together, they are over 96% effective, and using misoprostol on its own is more than 80% effective in the first trimester. 

Some people who manage their abortions would prefer to receive care from a trained medical professional but can’t afford the procedure or to travel the long distance to a clinic. Sometimes legal restrictions like mandatory waiting periods make an in-clinic visit difficult. For some, it’s too risky to seek care in a clinic. An individual might fear being outed to their community, an abusive partner, or jeopardizing their safety due to immigration status, explained Jill E. Adams, the executive director of If/When/How: Lawyering for Reproductive Justice.

“So then, as we see this ongoing deluge of abortion restitictions and even bans being passed, in the wake of those bans more people are going to need to self-manage abortions,” Adams told Fortune.

Others prefer to have autonomy over their abortion experience. In some cases, people who self-manage their care have been exploited by the medical system, for instance people of color or people with disabilities, explained Adams. Likewise, some people simply trust themselves to take care of themselves the way they need. 

Self-managed abortion is one way people are taking control of their abortion care while conservative lawmakers keep pushing roll backs of abortion rights. And there’s minimal medical risk to a patient who induces a medical abortion on their own, advocates say.

“The science has proven it’s really safe for women to do medical abortion themselves,” said Gomperts. “But all medical abortions are self-managed. Women that go to a clinic and get the pill and have their miscarriage at home—it’s exactly the same procedure if they get the pills online.”

Is It Legal?

It’s complicated. At least seven states have laws on the books directly criminalizing self-managed abortions and include Arizona, Delaware, Idaho, Nevada, New York, Oklahoma, and South Carolina. All of these laws pre-date Roe, likely making them unconstitutional, but have been applied nonetheless. 

Ten states have laws that criminalize harm to fetuses, and 15 have criminal abortion laws, both of which have been used to criminalize people handling their own abortion care.

In 2013, Jennifer Ann Whalen, a nursing home aide living in Pennsylvania helped her teenage daughter terminate a pregnancy after ordering the abortion pills online. She was sentenced to 18 months in prison for violating a state law that bars anyone other than a physician from performing an abortion, according to Rewire News

Whalen helped her daughter obtain the abortion for a number of reasons. The nearest clinic was 75 miles away, and a mandatory 24-hour waiting period would require Whalen and her daughter to make multiple long trips to the clinic. Whalen was arrested after she and her daughter told a doctor about the abortion during a visit to a local hospital.

According to Adams, when doctors report cases like this to law enforcement, “they’re almost certainly violating client privacy rights.

“People are just confused and believe there’s a duty to report self-managed abortion to law enforcement when no state requires reporting of suspected or confirmed self-managed abortion, including when the patient is a minor,” she said. 

Still, Adams described the legal landscape on the matter as a “patchwork landscape,” she says, because terminating a pregnancy is a human right, and criminalizing that is unconstitutional. 

Her organization, which organizes, trains, and mobilizes lawyers while also providing legal support to people criminalized for self-managed abortions, has received an uptick in calls over the past four months from people living in states where abortion bans are being enacted.

Because of the confusion around abortion rights broadly, calls to If/When/How’s helpline have come from people both facing intervention from law enforcement over a self-managed abortion, as well as people who are simply confused about their right to access the procedure at all. 

But advocates see this work as necessary, especially as more and more people are both in need of and interested in other options for terminating a pregnancy.

People have long been terminating their own pregnancies, explains Gomperts. They’ve just been doing it underground. But that “doesn’t change the reality,” she said. “There’s no reason to go underground because what I’m doing is legal.”

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