Can you mail abortion pills after Roe?

Photo: Luke Sharrett/Bloomberg via Getty Images

On the first day of September last year, Texas enacted one of the toughest abortion laws in the country, banning the procedure as early as six weeks. Later that month, with less fanfare, Governor Greg Abbott signed another bill, this time banning the mailing of abortion drugs into the state. But like Texas Grandstand reported in March, immediately after these laws, people may still be terminating pregnancies at about the same rate. According to a University of Texas at Austin study, an average of 1,400 people leave Texas each month to seek abortion care. Almost as many were able to terminate their pregnancies without leaving their homes: Researchers found in a separate study that Aid Access, an Austria-based organization that provides abortion medication by mail, received 1,100 requests a month from Texas alone . Abortions in clinics have decreased by 60%, but studies suggest that the incidence of abortions has only decreased by 10% overall in the state.

If Texas is the best test case we have for what could happen if the Supreme Court strikes down the Constitutional right to abortion in June, the results show that Afterno less, people will receive their abortion pills within a post-deer America. The idea of ​​being able to terminate a pregnancy in the comfort of your own home, privately by mail, is the embodiment of the feminist maxim of “abortion on demand”: safe, effective and standardized to the point of arriving with anything new direct-to-consumer sporting goods you just bought on Instagram. It’s fascinating to consider the following implication: mail delivery services – and the US Postal Service in particular – could become one of the nation’s largest abortion providers. On the one hand, there is potential here: an ad hoc federal subversion of state repressions. “You can’t protest every mailbox; you can’t create this kind of regulatory regime” that the right has built around physical clinics, says Amanda Allen, senior counsel at the Lawyering Project. On the other hand, with this potential comes uncharted legal territory and the possibility of even more criminalization and surveillance around abortion. There’s also the question of whether the USPS, a beleaguered federal agency, is up to the challenge.

Public awareness of the safety and availability of medical abortion – mifepristone and misoprostol taken in sequence, which together are commonly referred to as the “abortion pill” and can be given for ten weeks of pregnancy – has increased in the States -United. Medical abortion accounted for more than half of all abortions administered in 2020, according to the Guttmacher Institute. People get abortion pills in the mail in two ways, basically: In December, the FDA made both pills more accessible by permanently removing the requirement that they be prescribed in person, paving the way for telehealth providers such as Hey Jane, Choice, and Just the Pill, which send them to patients while complying with various state laws. In the case of self-managed abortion, patients obtain their own medication without official medical supervision through online pharmacies or services like Aid Access.

There are several ways the mail service feels like an incredibly powerful mobilizing tool in the fight against right-wing abortion restrictions. Theoretically, the ubiquity of mail delivery presents a huge opportunity for providers, advocates, and abortion advocates to physically join in when the law threatens to tear us apart. The USPS specifically feels like a foundation for an effective organization because it is a federal infrastructure: a fully democratized service that ostensibly reaches every person regardless of their state’s misogynistic state legislatures. If most Americans want access to abortion, which they do, then the USPS can physically represent that shared value on the ground, whether the agency realizes it or not. During the pandemic, after a hectic deployment, the institution was transformed into a public health emergency response system, providing COVID-19 tests to any household that requested them; the same could be true for abortions as education on the availability of the abortion pill is increasing everywhere. Patients who live in blue states but far from clinics can be contacted through the Postal Service; in red states sometimes it’s easier for people to cross a state line, have a telehealth appointment, and receive a package there than it is to go to a clinic in their state of origin. And as self-managed abortion grows, person-to-person networks will grow in a self-help type setting, operating clandestinely in the most hostile states. People can follow up the pills using a two-day service or even the next day if they need it.

There are, however, important caveats to making the dream of abortion by mail a reality for all who need it. Like abortion care, the USPS is another essential service that has been compromised by neglect and politicization for many decades. Delivery times have slowed due to lack of funding, and the areas most affected are likely the western states and parts of Texas and Florida – some of the states where abortion trigger bans are potentially about to be enacted. As with access to abortion, those most affected by slower, less reliable postal service are marginalized: people of color, people living in rural areas, and people living in poverty. And that’s assuming they would actually be able to access telehealth services or self-managed abortion counseling to place orders for abortion drugs by mail in the first place. Renee Bracey Sherman of We Testify, an advocacy organization, told Vox earlier this year that dismantling the in-person requirement for the pills “doesn’t really make a difference in the lives of people who have it. need more because they just can’t have [the pills] sent by mail.

And then there’s the fact that a wave of criminalization will most likely rise to meet the wave of abortion drugs in the mail. More than 100 restrictions on abortion via telehealth, including eight outright bans, have already been introduced in 2022; 32 states require at least one in-person visit in order to acquire abortion pills. There’s no reason to think that the more aggressive states, like Texas and Mississippi, won’t try to criminalize people who send and receive abortion pills across state lines, which could have a profoundly chilling effect on attempts to seek or provide such care. As BuzzFeed reports, “a 2017 online search for the abortion drug misoprostol was used to charge a woman with second-degree murder” and “in 2015 a series of text messages with a friend about the abortion helped convict another of feticide. and child neglect. There is a major precedent for the net of criminalization to be widened to make the type of solidarity networks facilitated by the mail as fragile as possible.

“I just have a million questions,” Wendy Parmet, a Northeastern professor specializing in reproductive rights law, says of the upcoming legal battles. “I see a mess. More disputes and more confusion. In the draft, Justice Alito says it’s time to give it all to the states, but it implies that state legislatures will deliver clean and orderly results in every state. Instead, what Parmet foresees is a storm of litigation – between states, between states and the federal government, between individuals and states. “States cannot regulate federal mail,” Parmet explains, “but they can regulate the use, the touch, the possession” of abortion drugs within their borders. “But how do they actually apply it?” she wondered. “Are they really going to be able to stop him?” They couldn’t in Texas. It’s a beginning.

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