The draft legal opinion leaked from the Supreme Court that promises to overturn the right to abortion in the United States says it will “return that authority to the people and their elected representatives,” making abortion access each state’s decision. Having had some time to absorb it, legal experts warn that’s a recipe for chaos—especially for abortions performed via medications, since pills cross state lines via the federally-protected US Mail.
Medication abortion—which constitutes ending a pregnancy in its first trimester with a regimen of one or two drugs—has already been a target for red-state legislatures. It accounts for more than half the abortions in the US, and so anti-abortion campaigners accurately perceive it as an end run around restrictions on surgical abortions. During the pandemic, access to the drugs actually got easier: The Food and Drug Administration allowed women who wanted them to make telehealth appointments, rather than the medical office visits some states insist on, and then to receive the pills by mail. The agency made that policy permanent in December.
If Roe v. Wade is nullified, that changes. Legislatures in 26 states have indicated they will either ban abortion entirely or restrict it to so early in pregnancy that the procedure becomes essentially inaccessible. Thirteen states have teed up trigger laws that would enact bans or restrictions immediately when Roe is overturned. Seven have banned the use of telehealth plus mailed drugs for abortions. Legislators in Louisiana have proposed, and ones in Tennessee have passed, criminal penalties for providing abortion medications by mail.
To lose access to abortion in half the continental US is devastating enough. But legal scholars say worse could be coming. In their zeal to disallow abortion by any means possible, states may seek to extend the reach of their laws outside their own borders, bringing them into conflict not only with the sovereignty of other states but also with powers that belong only to the federal government. That would lead to years of judicial havoc and—because the lower courts of the US were stocked with conservative judges during the Trump administration—could result in even further restrictions on the availability of abortion pills nationwide.
“In his draft opinion, Judge Alito suggested that leaving abortion to the states would make this issue simpler,” says Seema Mohapatra, a professor of health law at Southern Methodist University’s Dedman School of Law. “If anything, it will actually make it more complicated and create a lot more confusion for patients and health care.”
A few definitions, to be clear what we’re talking about. In a medication abortion, pregnancy up to 10 weeks is ended with pharmaceuticals: a two-drug regimen, mifepristone and misoprostol, approved by the FDA, or just misoprostol in a protocol published by the World Health Organization. Mifepristone, also known as Mifeprex and originally as RU-486, has been available in the US since 2000. Misoprostol is older; it’s been available for almost 50 years, primarily to prevent stomach ulcers when taking certain types of painkillers and also to help with uterine biopsies and the aftermath of miscarriages. Both drugs are prescription-only in the US, but how they can be obtained has been changing.
For most of the time its regimen has been approved, the FDA coped with political pressure to restrict it by imposing a “risk evaluation and mitigation strategy” that required health care workers to be certified by mifepristone’s manufacturer in order to dispense it. That maneuver limited access to the drugs by forcing people to go to a medical office or abortion clinic to undergo an interview and then pick up the drugs, conditions the FDA imposes on no other pharmaceutical that is comparably safe. In addition, according to the Kaiser Family Foundation, 33 states limited prescribing to physicians only, seven states required counseling that the effects of the medication might be reversible (a claim not supported by medical evidence), 14 states refused to allow Medicaid to pay for the prescription, and multiple states restricted insurance coverage for the regimen in their Affordable Care Act marketplaces.
Allowing telehealth sidestepped some of those restrictions; by lifting the requirement for face-to-face encounters, the FDA made it possible for a practitioner sitting in one state to authorize prescriptions for a patient in another. Building on that, telehealth-only practitioners created new models in which physicians with licenses in multiple states could approve shipments to any of those states, or physicians outside the US could order and ship pills from an overseas pharmacy, or people could buy pills with no health care worker involvement at all.
The thing about abortion access under Roe, though, was that while abortion could be restricted, it could not be entirely outlawed. When Roe goes, the legal landscape will be shaken up like an Etch-a-Sketch. The first published examination of what is likely to come next, a preprint that is now online (and will be published in the Columbia Law Review later this year) shows how complex this is likely to be: It runs to 55 pages and 305 footnotes.
“Historically, states were able to ban abortion by threatening providers such that they stopped providing abortion care,” says Greer Donley, one of the article’s three authors and an assistant professor at the University of Pittsburgh School of Law. “But medication abortion changes things. So the anti-abortion movement is going after every creative way that it can try to stop the influx of pills coming from elsewhere.”
Medication abortion raises questions for which there are no clear precedents. If a health care worker licensed in one of the 15 states that consider abortion a constitutional right approves pills for someone in a state where abortion is outlawed, has the person in the first state violated the second state’s law? What if telehealth is illegal in one state, and a pregnant person crosses the border into another to connect to the internet there? What if they pick up the prescription at a pharmacy in a safe state, or borrow a friend’s address or rent a post office box to receive them, but take them back to the outlawing state to consume them? What if they take the pills in a free state but complete the abortion at home?
Historically, a state’s legal code has been assumed to stop at its borders. And for the most part, states have not prosecuted residents who leave to do something that is legal at their destination but illegal at home. “Before it became legalized in most places, people would travel to Las Vegas or Atlantic City to gamble, without fear that their home state would come back and charge them with a crime,” says David S. Cohen, another author of the article and an associate professor at Drexel University’s Thomas R. Kline School of Law. “Anti-gambling moralists existed, but they weren't chomping at the bit to make sure that people didn't go to Las Vegas. But anti-abortion extremists are chomping at the bit to stop as many abortions as possible, and this uncertain body of case law is going to provide an opportunity for them to test the waters.”
This spring, Missouri considered, but did not pass, a measure that would have criminalized out-of-state travel for an abortion, creating a bounty-hunter incentive similar to Texas’ new anti-abortion law to enforce it. Exercising “extraterritoriality,” or trying to enforce one state’s laws inside the jurisdiction of another state, would be a new frontier in abortion restriction, but in a post-Roe world, legal scholars can’t rule it out. In New York, which has declared itself a safe-harbor state for abortion, legislators have introduced a bill to protect abortion providers from being extradited to anti-abortion states for prosecution, and Connecticut has passed a law that protects against extradition and also judgments handed down in other states.
Collisions between the legal codes of states as people cross their borders—or medications do, or the internet does—is just one conflict that might arise. Cross-border travel and interstate commerce are constitutionally protected, for instance, and delivering the mail is a federal project. Approving the safety and sale of pharmaceuticals nationwide is the responsibility of the FDA. GenBioPro, which manufactures mifepristone, is suing the state of Mississippi because its restrictions on the drug’s availability are stricter than what the FDA has set.
“The federal government has control over the mail, and the federal government also has control over whether a medication can be available and sold in the US,” says Khiara M. Bridges, a professor of law at the UC Berkeley School of Law. “So we expect a conflict between a state's ability to regulate the practice of medicine and the federal government's ability to regulate the availability of any medication in the US.”
The reproductive-law scholars watching this slow-motion crash predict that legislators in anti-abortion states won’t wait for courts to rule on these conflicts before acting to roll back abortion access. They expect those states to go ahead with imposing restrictions on the privacy of the mail, the movement of goods between states, the prerogatives of other states to direct the conduct of health care—and to keep doing so until a decision at some level of the court system tells the infringing states that they have overreached.
That could mean it will fall to entities within health care—abortion clinics, telehealth providers, hospital systems, drug manufacturers—to try to sue preemptively to block new laws. It could also mean having to rely on criminal defense attorneys, who are not generally expected to be up to date on health law, to defend women. In the past, law scholars point out, anti-abortion states have pursued providers of abortion but declined to charge people who obtain them. The case of Lizelle Herrera of Texas, who was arrested and charged with murder in April for what the local sheriff’s office called a “self-induced abortion,” suggests that carve-out may be ending. “As providers get harder to track down, what happens if states turn their attention to the people terminating their pregnancies?” asks Rachel Rebouché, the third author on the review article and associate dean for research at Temple University’s James E. Beasley School of Law.
Legal experts envision years of judicial turmoil and, under the cover of that tumult, the possibility that other rights now thought settled will be taken away. As with abortion, social actions that now are settled legalities—same-sex marriage, interracial marriage, access to fertility procedures and birth control—are not explicit in the Constitution. They arose from court decisions that found the Constitution confers the right to privacy and bodily autonomy. As the fate of Roe seems likely to show, such decisions can be reversed.
“If the court is willing to overrule a 50-year-old precedent, then they may be willing to overrule other landmark cases that have not been around for as long,” says Tanya Washington Hicks, a professor at the Georgia State University College of Law. “What I see at the jurisprudential level is that this is going to create social chaos. People shape their lives based on what they're allowed to do.”
Update 5-16-2022 6:11 PM ET: This story was updated to correct the spelling of Seema Mohapatra's name.
