Jacob Bogage, Christopher Rowland, The Washington Post, 6/25/22
The Supreme Court decision to strike down Roe v. Wade is expected to trigger new battles between states over abortion access, as women and advocates try to get around newly enacted bans by seeking the procedure out of state and using hard-to-trace medications.
The fights promise to raise tensions between states in ways not seen since the era of slavery, experts say.
Multiple states, including Arizona, Arkansas and Texas, have sought to stem the flow of abortion-inducing pills by making their shipment through the mail illegal. Republican lawmakers in Missouri are considering a bill that would prohibit Missouri residents from getting an abortion out of state as well as penalize out-of-state medical professionals. Model legislation recently released by the antiabortion Right to Life organization would make it a felony offense to help a minor obtain an abortion across state lines.
These steps by emboldened conservatives are raising concerns that cross-border investigations targeting abortion will test traditional law-enforcement cooperation among states.
In response, liberal governors and legislatures are erecting legal countermeasures. California Gov. Gavin Newsom (D) on Friday signed a bill aimed at protecting patients and health-care providers from civil penalties sought by states that ban the practice. Another proposal would protect the California licenses of abortion providers who offer care via telehealth in jurisdictions where the service is illegal. The governors of Washington and Oregon joined Newsom in declaring a West Coast “commitment to reproductive freedom” citing the intention to pass more sweeping protections, including refusals to extradite people to states with abortion bans.
And hours after the Supreme Court ruling, Massachusetts Gov. Charlie Baker (R), a moderate Republican, issued an executive order barring state officials from assisting investigations by other states of providers, advocates and patients who obtain abortion services.
The divergent approaches threaten to deepen regional divisions over abortion that had been somewhat muted by Supreme Court precedents that established abortion as a constitutional right.
“We haven’t seen this kind of battle about … the reach of the jurisdiction of one state over another in a very long time,” said Wendy Parmet, director of Northeastern University’s Center for Health Policy and Law. “Nothing of this magnitude have we seen since the Civil War.”
Republican-controlled states also are setting up potential constitutional showdowns by banning abortion pills, which directly conflicts with U.S. Food and Drug Administration approvals of the medications.
“Over the next few months it’s going to be total chaos. Every state has different laws at this point,” said Greer Donley, an assistant professor of law at University of Pittsburgh and co-author of a deep analysis of post-Roe legal issues. “Patients are going to be totally confused trying to figure out where to go. Clinics that remain open will be inundated by out of state travelers. It’s going to be a total, total mess.”
The relative ease of use of abortion pills and the ability to send them through the mail is making them a key focal point in the emerging legal battles.
A gray market in abortion pills is expected to expand, as advocates and patients arrange for hard-to-detect shipments to be sent via mail to states with abortion bans. More than half of abortions in the United States already are performed with the medications mifepristone and misoprostol, which are together referred to as the abortion pill. They must be used within the first 10 weeks of pregnancy. The pills can be obtained at abortion clinics but they have increasingly been sent through the U.S. Postal Service, especially as Republican states have passed legislation that have forced abortion clinics to close.
The FDA requires that mifepristone be dispensed by a provider, not a pharmacy. The agency increased access in December by making permanent a pandemic-era rule that allows telehealth prescribing and mail shipments.
Still, even using telehealth links, physicians are limited to prescribing medicine in states where they are licensed to practice. That is prompting activists and patients to set up elaborate workarounds, where pills are first mailed by the provider to an address in an abortion-friendly state and then forwarded to the patient in an antiabortion state by a friend or relative.
Under emerging laws in states with abortion bans, such maneuvers could expose everyone in the supply chain to lawsuits, investigations and possible prosecution. Even providing information to patients on how to obtain the pills out of state could soon be illegal in some states, experts say.
“Many states will treat chemical abortion pills the same way they treat other toxic substances that injure and end life,” said Roger Severino, vice president of domestic policy at the right-wing Heritage Foundation think tank. “Although courts haven’t decided the question, pro-life states like Texas will not sit idly by while abortionists in ‘sanctuary’ states like California flood their citizens with these dangerous drugs, nor should they.”
Some antiabortion lawmakers told The Washington Post that they would support those efforts.
With legal dispensing channels shut down, “then the pills go underground just like they would any other illegal drug, and I’d assume it’d be investigated,” said Louisiana Rep. Danny McCormick (R), who sponsored legislation in his state that would prosecute abortion as murder.
But bans on abortion pills also may face lawsuits from the federal government. Attorney General Merrick Garland issued a statement Friday reinforcing the Justice Department’s view under the Biden administration that the FDA approval of the pills means they should be available in all 50 states.
“States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Garland said.
Abortion patients and advocates already are tapping online foreign sources for pills, via websites including Plan C, which offers links to Indian generic pharmacies, and AidAccess, with prescribers based in Austria. The FDA cautions against such importation for personal use, but it has not sought penalties against individuals for doing so.
“The practical reality is it’s really hard for states to police the mail that is coming in and out of their borders,” Donley said. “Many of the people who are shipping these pills right now are international actors and so far the states have been completely unable to do anything about it because they don’t have any jurisdictional reach outside the country.”
Illinois, an abortion-friendly state surrounded by states that are banning or likely to ban the procedure, is likely to become a flash point for cross-border state conflicts.
Across the Mississippi River in Missouri, a so-called “trigger ban” law outlawing abortion automatically took effect as soon as the Supreme Court overturned Roe v. Wade. It forced the closure Friday of the last remaining Planned Parenthood abortion clinic.
“We have reached the end of the line for abortion care” in Missouri, Yamelsie Rodriguez, president and CEO of Planned Parenthood in the region, said on a press call Friday, soon after notifying Missouri health authorities the clinic had closed.
Now, she said, the focus of abortion advocates in the region would shift across the Mississippi River, to Illinois, where providers are preparing for a surge of demand from Missouri residents. In Illinois, she said, providers in recent weeks also have seen an influx of patients from Texas, Oklahoma, Arkansas, Louisiana and Florida.
The Illinois House of Representatives has passed a bill that would prevent state action against the medical licenses of providers who provide services to patients who reside in states with abortion bans. After the Supreme Court decision Friday, Illinois Gov. J.B. Pritzker called for a special session of the state legislature this summer to bolster protections for abortion providers against potential out-of-state lawsuits and investigations.
Even with such protections, law enforcement could intercept and inspect packages with probable cause and a warrant from a judge — a routine practice in narcotics cases, for instance.
“If you’re the doctor in Connecticut … if you’re committing what you know is a crime in Texas, you’re going to put as little information as you can on the envelope,” said Mary Ziegler, a professor of law at the University of California Davis. “As much as your state says it will protect you, doctors are not going to expose themselves to unnecessary risk.”