Anti-abortion groups take aim at medicated, at-home abortions
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Two top antiabortion groups have crafted and successfully lobbied for state legislation to ban or further restrict the predominant way pregnancies are ended in the United States — via drugs taken at home, often facilitated by a network of abortion rights groups.
In the wake of the Supreme Court’s decision to overturn Roe v. Wade, 14 states now ban or partially ban the use of those drugs, mifepristone and misoprostol, which are used in more than half of all abortions.
Major legal fights loom over abortion pills, travel out of state
But the drugs remain widely available, with multiple groups working to help provide them even to women in states with abortion bans. Students for Life of America and National Right to Life Committee, which have played leading roles in crafting antiabortion laws, hope to change that with new legislation.
The groups are pursuing a variety of tactics, from bills that would ban the abortion-inducing drugs altogether to others that would allow family members to sue medication providers or attempt to shut down the nonprofit groups that help women obtain and safely use the drugs.
Their strategy reflects the reality that abortion access today looks vastly different from that of the pre-Roe world, one without easy access to abortion medications from out-of-state or overseas pharmacies.
“We knew we couldn’t just go back to pre-Roe laws,” said James Bopp Jr., attorney for National Right to Life. “We knew new approaches were needed.”
Both organizations have long opposed medication abortions, but Students for Life’s legislative efforts did not gain traction until 2021, when seven states passed bills modeled after legislation crafted by the group to create legal barriers to the medications. In some cases the laws also banned them from college health clinics. A new wave of these proposals are expected to be introduced — or reintroduced — in statehouses across the country when most legislatures reconvene in January.
National Right to Life, meanwhile, released a “model law,” a week before the overturn of Roe v. Wade that seeks to outlaw a coalition of nonprofit groups that assist women with self-managed abortions. Last month, Republican lawmakers in South Carolina became the first to introduce the legislation.
The efforts illustrate how the antiabortion battlefront now reaches beyond traditional bills seeking criminal penalties for doctors who provide surgical abortions in hospitals or clinics, instead targeting organizations that assist women with mail-order abortion prescriptions and safety protocols for self-managed abortions.
Kristan Hawkins, president of Students for Life, also said the strategy has expanded because the use of abortion medication is expanding. The Guttmacher Institute, a nonprofit research organization that supports abortion rights, found the drugs were used in 54 percent of abortions in 2020 — a doubling from 2012 to 2013. These numbers are expected to rise as more states pass abortion restrictions and more women turn to drugs sent by mail.
“Reversing Roe, shutting down these dangerous brick-and-mortar facilities, while very important is simply a fight. It’s not the entire battle,” Hawkins said, adding that medication abortions are “the new frontier of abortion.”
Abortion advocates said these state-level battles will have an outsize impact on poor women in rural areas, especially those in states where abortions are illegal, because they do not have the means to travel to faraway clinics.
“It continues this expansion of the criminal apparatus to address all things related to bodily autonomy with respect to women and people with the capacity for pregnancy,” said Dana Sussman, an attorney and acting director of National Advocates for Pregnant Women.
Supreme Court Justice Stephen G. Breyer predicted in June that antiabortion groups would take a similar tact with the overturn of Roe v. Wade. “After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State,” Breyer wrote in his dissent to the ruling. “Some may criminalize efforts, including provision of information or funding, to help women gain access to other States’ abortion services.”
In anticipation of the Supreme Court decision, Students for Life sent numerous emails in 2021 and 2022 to state lawmakers — obtained by The Washington Post — offering to help them craft antiabortion bills and legislative campaigns. They also told lawmakers that student volunteers were “chomping at the bit” to lobby on their behalf for “hard-hitting legislation” they agreed to sponsor.
The Biden administration, meanwhile, has pledged to ensure access to abortion medication. But administration officials are still wrestling with how to deliver on that promise beyond the president’s July 8 executive order that seeks to protect access. Some Democrats, like Illinois Gov. J.B. Pritzker, have asked the president to assert federal authority over the U.S. mail system to specify that no one will be prosecuted for prescribing or receiving the drugs through the Postal Service.
Antiabortion groups have repeatedly said their measures will not subject people who have used medication abortions to criminal or civil penalties. “The pro-life movement has not and will not prosecute the women,” Hawkins said.
However, a 17-year-old Nebraska teenager was criminally charged in July for allegedly performing a medication abortion at her home, in violation of a state law banning pregnancy terminations after 20 weeks. Prosecutors say she will be tried as an adult. Her mother is also facing charges.
Even when women are not the subject of criminal probes, abortion rights groups say they are still invariably placed at the center of police investigations and civil court battles because they become key witnesses.
“We can look to the time before Roe when it typically wasn’t a crime for the person who had the abortion, but they were frequently seized and interrogated,” said Farah Diaz-Tello, senior counsel and legal director of If/When/How, a legal reproductive justice nonprofit. “They were exposed to all of these things that are dehumanizing and humiliating, so it is just an ancillary point that they will not be the subject of a criminal investigation.”
The Food and Drug Administration approved mifepristone in 2000 to end an early pregnancy. The medication, now authorized for the first 10 weeks of pregnancy, causes the uterine lining to detach, and is typically used with a second drug, misoprostol, which clears the contents of the uterus.
Even before Roe fell, some states targeted women who used the drugs.
Idaho authorities in 2011 arrested and interrogated Jennie Linn McCormack, 32, after she told a friend about ordering mifepristone online and taking it to successfully end a 20- to 23-week pregnancy at home, charging her under a state law forbidding abortions after 20 weeks that also banned self-managed abortions.
McCormack, who did not respond to requests for comment, became front-page news in the local newspaper, although charges were later dropped and the law — crafted by National Right to Life — was struck down. “She was fired from her dry cleaning job because customers recognized her and they didn’t want someone like her touching their clothes,” said Richard Hearn, McCormack’s attorney.
After President Donald Trump’s election — with abortion rights newly under threat — an aggressive coalition of groups began helping women like McCormack navigate the process of terminating a pregnancy at home and getting the necessary drugs. Those groups have multiplied and united in recent years, said Erin Matson, co-founder of Reproaction, who helped organize a formal coalition this year called Abortion on Our Own Terms.
In response, top antiabortion groups have pushed to shut down those groups. National Right to Life calls the coalition an “organized criminal enterprise” in the summary of its model legislation, which seeks to outlaw groups that share information on how to self-administer abortion pills.
Bopp acknowledges that criminal prosecutions under the law might prove difficult, due in part to a pledge that dozens of prosecutors across the nation have taken to not to pursue cases against those helping women to end pregnancies. Legal experts say the bill also seeks to criminalize activity — educating women about medication abortions — that is protected by the First Amendment. But Bopp’s bill also includes a provision allowing lawsuits against the groups by intimate partners and family members of women who perform medication abortions.
Kimberly Inez McGuire, executive director of Unite for Reproductive & Gender Equity, says the laws are meant to create a “chilling effect” on the groups. “Part of the intention of this law is to sow fear. It is meant to make groups like URGE and the groups that we partner with afraid to do right by our communities,” she said.
Bopp agreed that the threat of a civil lawsuits can shut down abortion operations. After Texas enacted a six-week abortion law last year, which allowed people to sue anyone who assists a women in securing an illegal abortion, clinics across the state shuttered.
“It worked without anyone even having to bring a civil action,” Bopp said of the Texas law. “It stopped abortion.”
Students for Life is taking a different tact in efforts to limit or outlaw medication abortion — crafting and backing bills that restrict access to the drugs themselves.
Among the seven bills the group has successfully lobbied to pass, each requires women to see a physician in person to receive the medications rather than receiving them through the mail. The mandates vary from state-to-state, but most require a physical examination, a test to determine the blood type of the baby, an ultrasound to determine the stage of the pregnancy, a disclosure of safety risks and a follow-up examination after the procedure. In many of the states, the medications could only be used in a limited set of circumstances, like in Oklahoma where its use is restricted to ending early pregnancies that resulted from rape or incest — or if the woman’s life is in danger.
Telehealth appointments for the procedure are also prohibited under the bills.
In some cases, doctors are required to tell their patients that they can potentially reverse the effects of mifepristone and stop the abortion process — something that the American Medication Association has said is “a claim wholly unsupported by the best, most reliable scientific evidence.”
“So many states in the abortion arena have been playing with misinformation like this, relying on the antiabortion movement instead of medical professionals and what the science shows,” said Wendy E. Parmet, co-director of Northeastern University’s Center for Health Policy & Law. “Some states have required physicians say it causes breast cancer — which is also false.”
The ultimate goal of Students for Life is to block access to drugs entirely. The group is seeking criminal sanctions for the physicians and organizations that “manufacture, distribute, prescribe, dispense, sell or transfer” the drugs in the state.
If passed, the laws would be most effective in blocking prescriptions made by doctors in states where abortion is still legal — typically through telehealth appointments — to patients who reside in states where medication abortions are banned in all circumstances.
Experts say it is unlikely that law enforcement would be allowed to enter a state to arrest a doctor where they have no jurisdiction. However, state medical boards could penalize doctors — including revocation of their medical licenses — if they determined they are not licensed to practice medicine with someone who resides outside their state.
“It’s not as bad as going to prison, but it’s certainly something that no doctors want to have to do — be in a position where they are having to defense their license,” said Hearn, McCormack’s attorney, who is also a physician.
Antiabortion advocates would have an even more difficult time targeting overseas physicians and pharmacists who prescribe and mail the medications into the United States.
Aid Access, which is based in Austria and typically uses pharmacies in India, provides this service, asking only for a $110 donation. Women who can’t afford that pay significantly less, and sometimes nothing at all.
Legal experts said that since states don’t have the authority to ask foreign countries for extradition, the federal government would have to get involved and foreign countries would have to agree.
“As a practical matter, people order medications from outside of the United States all the time — and it’s not technically lawful,” said Diaz-Tello, the legal director of If/When/How. “Imagine trying to interdict the vast number of medications that come into the country everyday.”
The Trump administration unsuccessfully attempted in 2019 to shut down Aid Access’s work in the United States. Instead, as the threat to abortion access within the United States grows, women are increasingly turning to the organization for help.
A University of Texas study published in February found that in the weeks after Texas passed its six-week abortion ban, Aid Access received nearly 38 requests a day from Texas women — up from nearly 11 requests a day. Requests also increased slightly in 49 other states during this same time period.
“Time and time again, when you outlaw something, you see a shift because the demand hasn’t changed. Self-managed abortions were bound to rise,” said Abigail R.A. Aiken, the lead author of the study.
Students for Life is also using provocative language on social media, on its website and in media interviews, calling medication abortions “the new back alley abortion.”
“They are literally willing to expose women to injury, infertility and death,” said Hawkins, the group’s president, who asserts that medication abortions are more dangerous than surgical abortions.
However, studies cited by antiabortion groups and abortion rights groups alike show that when pregnant people take the combined regimen of mifepristone and misoprostol at 10 weeks or earlier in their pregnancy, it is safe and effective between 95 to 97 percent of the time with the remaining pregnancies requiring some intervention in a medical setting to complete the abortion.
The World Health Organization also said in March that medication abortions are safe at 12 or weeks or less of pregnancy in its new abortion care guideline. And the FDA last year removed the requirement that mifepristone be dispensed in person at a clinic, medical office or hospital, saying it can be safely sent through the mail.
Shawn Boburg and Alice Crites contributed to this report.