In these earliest days of the post-Roe world, those both supporting and opposing abortion rights are scrambling on shifting sands to find loopholes in anti-abortion regimes, and to snap them shut.
Those efforts are already starting to clash as anti-abortion players eye policing the procedure even out of their jurisdictions, while readily available abortion pills fly around the country in discrete packaging unmolested.
House Democrats, largely powerless though they are given the 50-50 Senate, have noticed.
“The Supreme Court may have ripped away a woman’s right to reproductive choice, but they cannot stop a woman’s right to travel,” Rep. Marilyn Strickland (D-WA) said while introducing the Ensuring Access to Abortion Act of 2022. “This bill reaffirms a Constitutional right, and I call on my Republican colleagues who say they support freedom to vote yes.”
They plan to bring the bill to the floor this week to assert, specifically, that the freedom of interstate commerce supersedes any state prohibitions on abortion pills.
The bill will die in the Senate, which is currently debating a similar version of the legislation, as the filibuster would require 10 Republican votes to pass. That leaves a void that state legislatures and courts will likely soon fill.
Red states are rushing to seal their borders to abortions, to make themselves bastions where the procedure is completely inaccessible.
Arizona, Arkansas and Texas banned the mailing of abortion pills even before the Dobbs decision came down last month. In 2021, Texas made its ban even more draconian, adding fines of up to $10,000 and jail time for anyone who prescribes abortion pills through telehealth or the mail.
“This piece is really important for this period but also moving into the future, when we see even after [Roe v. Wade] we have organizations and individuals advertising that they will mail abortion-inducing drugs,” the legislative director of Texas Right to Life said at the time.
Other states, like Indiana, have put gestational limits on when the pills can be used. And others, including Kentucky and South Dakota, have tried to enact mail or telehealth abortion pill bans, but have been waylaid by court action.
Medical abortions account for over half of all U.S. abortions. The Biden administration warned pharmacies this week that they risk violating federal law if they refuse to fill prescriptions for abortion pills, and Attorney General Merrick Garland has said that states may not ban mifepristone, one of the pills, based on disagreements with the Food and Drug Administration’s assessment that the drug is safe and effective. (Anti-abortion activists often falsely smear abortion drugs as dangerous.)
Activists and Republican lawmakers alike are flirting with the idea of going a step further and targeting interstate travel for reproductive care, perhaps through state-level legislation penalizing those who travel with a pregnant woman, or who provide care to patients — including pills — who live in places where abortion is illegal.
But even while anti-abortion figures try to make the procedure extinct, demand for the abortion pill — usually two drugs, mifepristone and misoprostol — is skyrocketing.
Groups like Just The Pill, a nonprofit that arranges for patients to receive abortion medication, and Hey Jane, a company that provides telemedicine abortions, reported massive upticks in demand even just in the immediate aftermath of the Supreme Court decision. Some prescribers said that demand began as early as the leak of the draft majority opinion overturning Roe v. Wade, as panicked women tried to proactively secure a stockpile.
Many suppliers and consumers of abortion drugs are already outfoxing the anti-abortion regimes.
For some providers, that entails setting up mobile clinics just across the border of anti-abortion states, where patients can be prescribed and get their medications.
For others, it means crafty mail forwarding arrangements, where the pills are sent to an abortion-friendly state before being forwarded on to the hostile one where the patient lives. One provider tested the system with vials of dried garbanzo beans, to make sure the traveling pill bottles wouldn’t raise any red flags. It worked, for now.
But for other medical outfits, the legal murkiness around providing pills to women who inhabit states that ban the procedure is chilling — and complicating — care.
At least four of of Montana’s five abortion clinics, for example, have stopped providing medical abortions to out-of-state patients, out of fear that they could be liable under the women’s home state regimes. Confusingly, though, they’re still providing surgical abortions to those without Montana addresses.
The rules around how diligently prescribers have to check where patients are located are loose. If a patient lies about where she’s located during a virtual appointment, many health care providers likely lack the resources to check.
All of these unknowns make the intersection of pills and interstate travel a prime target for legislation, as both blue states and red feel out the contours of the new world.