What’s the future of abortion pills if the Supreme Court lets states ban abortion? : NPR

Medication accounts for more than half of abortions, fueled in part by a greater reliance on telehealth. How did a Supreme Court decision overturning Roe v. Would Wade affect the availability of abortion pills?


If the Supreme Court overturns Roe v. Wade, states can set their own abortion policies. But what about abortion pills, which can be prescribed from state to state? Medications now account for more than half of abortions, fueled in part by increased use of telehealth. NPR’s Yuki Noguchi joins us to discuss the legal future of abortion access in this way. Hello Yuki.


FADEL: So, Yuki, this draft opinion shows that the Supreme Court is about to overrule Roe. If this happens, what is the next step?

NOGUCHI: Well, the next step is a legal battle between the red and blue states. A ruling will prompt about half of states to ban or further restrict abortion, whether performed in clinics or through medication. However, the Food and Drug Administration will still allow access to these pills via telehealth for use up to 10 weeks pregnant. And these policy differences matter because both sides know that getting abortion pills via telehealth is a primary workaround for people in states that clamp down on abortion. This is already the case in Texas, where new restrictions on abortion came into effect last fall.

FADEL: OK, it’s Texas. What about other states?

NOGUCHI: Yeah. So you see states taking very different legal positions right now. States like Louisiana and South Carolina, for example, will allow criminal prosecution of doctors performing abortions. But Connecticut recently passed a law saying it would protect its doctors who prescribe the pills to patients in other states that restrict abortion, meaning Connecticut won’t extradite them to those states for prosecution. And New York and California are considering similar measures. So Mary Ziegler says it’s basically this confrontation between states. She is a law professor at the University of California at Davis.

MARY ZIEGLER: Soon the question will be how states and potentially the federal government will navigate this arms race between people who seek to use medical abortion to circumvent state abortion bans and how states are trying to fill these gaps.

NOGUCHI: Ziegler says that also raises other questions, like, you know, can states try to stop people from traveling or have a say in what’s legal in another state?

ZIEGLER: And so if all of this sounds like the abortion issue isn’t going to be out of court anytime soon, that’s because it’s true.

NOGUCHI: And, you know, Leila, you’ll see both parties settle for a lawyer.

FADEL: OK, so more legal fights ahead. But this decision has not yet been made. So as we sit here today as we speak, is getting pills using telehealth legal? And then the big question – will it be after the decision?

NOGUCHI: Yeah. So it depends on where you are and who you ask. There are 19 states that currently ban telehealth abortion care, but it is possible to obtain it legally in other states. Doctors can prescribe – you know, treat and prescribe in states where they are licensed and telehealth abortion care is licensed. But the law is grayer when it comes to long-distance prescribing in states with abortion restrictions. So Aid Access, for example, does that. Its founder, Dr. Rebecca Gomperts, works from Austria and ships medicine from India. The FDA says this import of drugs is unauthorized, but so far has not stopped it either. And Ziegler, the law professor, says Gomperts essentially operates between international law and national law.

ZIEGLER: Aid Access has taken the position, essentially, that where it is, abortion is considered legal. She considers abortion a human right. State laws aside, it’s a human right and, you know, access is going to follow that logic, not each state’s rules.

NOGUCHI: And as she said, you know, abortion is legal in Austria, where Aid Access is based. Thus, extradition to the United States for violation of state law is difficult and unlikely. And, you know, a Supreme Court decision won’t change that.

FADEL: Interesting. So how are these sites offering these pills preparing for a possible post-Roe world?

NOGUCHI: Yeah. They are already seeing growing demand. Traffic to the Aid Access site increased 30-fold the week after the draft decision leaked.


NOGUCHI: And people even ask for prescriptions to keep, you know, just in case they need them. And once there’s a ruling, more people, of course, won’t be able to get abortions in their own state, and so they’ll have to go to clinics where abortion remains legal if they need go to a clinic. But many of these clinics are already overbooked. And that’s where Jamie Phifer hopes his site, Abortion on Demand, can step in. She hopes telehealth will reduce those wait times, especially for women in early pregnancy or who have lower medical risks.

JAMIE PHIFER: We plan to serve patients who are already in these paradise states and who are experiencing longer wait times for in-person care.

FADEL: Now, are there concerns about relying on the telehealth of a doctor who could be very far from the patient he is actually treating?

NOGUCHI: Well, yeah, there are the same trade-offs that exist in telehealth in general, right? – though it may be cheaper and easier to access, but of course in-person follow-up care may be more difficult. And again, these pills are FDA approved and the risk of complication is low. But if or when, you know, a complication should arise, people are often forced to find follow-up care with another doctor. Katie Glenn therefore argues that telehealth makes abortion less safe. She is a government affairs advisor for Americans United for Life, a political group against abortion rights.

KATIE GLENN: This is a professionalized company designed to provide substandard care to every person who visits the website. These websites do not publish, like, this is a photo and the biography and references of the doctor who makes our calls. Like, we have no idea.

NOGUCHI: So Glenn is advocating for laws to hold doctors accountable through criminal prosecutions.

FADEL: And what do these service providers say?

NOGUCHI: Well, that’s why they want to see their home states pass laws protecting them from being sued by another state. A provider in New York told me that such arrangements would give her, you know, the reassurances she needs to continue prescribing via telehealth across the country.

UNIDENTIFIED DOCTOR: If I have these protections from New York, then I would be able to send medication, abortion pills, to people in any state, on the understanding that it is a FDA approved drug, this is something I am licensed and fully capable of doing. But I definitely won’t be visiting any of those red states because somehow if they knew I was there, I would be taken there. And New York can’t protect me if I’m in one of those other states.

NOGUCHI: You know, Leila, so there are personal risks for suppliers, of course. This doctor, for example, did not want to share his name for fear of being harassed.

FADEL: So, no road trips through these states in his future.


FADEL: This is Yuki Noguchi, a science correspondent for NPR. Thank you very much Yuki.

NOGUCHI: Thank you, Leila.

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