The future of abortion in U.S. states where it’s illegal: Medication mailed from overseas, reproductive law expert says
With Roe overturned as of Friday, back-alley abortions won’t return en masse in states where abortion is illegal.
The future of abortion in such locales: “Medication abortions in an envelope,” sent from individuals overseas who can’t be extradited, lawyer Adam Winkler—a constitutional law expert at UCLA School of Law whose scholarship has been cited in landmark Supreme Court cases—told Fortune on Friday.
“We’ve already seen this in Texas, for instance, where abortion is still being obtained by women, but through medication—and that’s the future,” said Winkler, also a faculty adviser at the Center on Reproductive Health, Law, and Policy at UCLA Law. As of September a Texas a law bans abortion after six weeks of pregnancy.
Mifepristone—a drug that chemically induces abortion by halting the supply of the hormone progesterone, which maintains the lining of the uterus—was approved by the U.S. Food and Drug Administration in 2000. It’s prescribed with misoprostol, a drug that causes uterine contractions. On Friday U.S. Attorney General Merrick Garland said states can’t ban mifepristone “based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
States don’t ordinarily have the ability to reject the FDA’s recommendations and prohibit a drug from being sold, Winkler said. But “we don’t have a lot of case law on this.”
“I imagine there is a battle to come over medication abortion,” he said. “How the courts will rule will remain to be seen.”
If a case inspired by a state-versus-federal-government fight over medication abortion reaches the Supreme Court, don’t necessarily expect the vote to match Friday’s, Winkler said.
“It wouldn’t just be an abortion case—it would be a case about the supremacy of federal law,” he said. “There is a lot of case law, 200 years of Supreme Court rulings recognizing the supremacy of federal law.”
But, he cautioned, “you can imagine a court that’s dead-set against abortion rewriting those doctrines. They spent some time rewriting doctrines this week.”
While medical providers in states that allow abortion could prescribe mifepristone via telemedicine to those in states that outlaw abortion, such professionals run the risk of being extradited and prosecuted.
But for international providers, there’s no such risk.
“What we have seen so far is a rise in international organizations providing abortion pills. They’re not subject to criminal punishment by states,” Winkler said.
Another layer of protection for women receiving abortion pills via mail: The federal government controls it.
“States are not involved in the delivery of mail and don’t have the authority to inspect it,” he said, adding that it’s a felony to tamper with mail.
The good news, according to Winkler: Medication abortions are the safest form of abortion, and they should still be accessible in states where they’re illegal—even if they’re harder to obtain than they were earlier this week.
“It’s really going to fall upon women to educate themselves and fight and seek out the health services they need,” he said. “But given the internet and mail system, women should still be able, if they wish, to end a pregnancy, practically speaking.”
Winkler advises women in states where abortion is illegal to take steps to protect themselves when searching for information online, including downloading a private browser, as browsing history is regularly used by law enforcement to prove intent. (In 2017 prosecutors charged a Mississippi woman with second-degree murder after she said she experienced an at-home stillbirth. Authorities found evidence on her phone that she had searched for information about mifepristone. The district attorney eventually dropped the charge, and a grand jury failed to indict her again.)
“It may be illegal, but people break the law every day,” Winkler said of abortion, adding that while “not an ideal situation,” it can be thought of a bit like drugs.
“Drugs may be illegal, but if you really want them, you can find a way to get them.”
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