Google searches for the term “abortion pills” rose to an all-time high on May 3, the day Politico published a leaked draft opinion indicating the Supreme Court is likely to overturn Roe v. Wade.
The two-drug regimen of medication abortion, as it’s clinically known, has been available since the Food and Drug Administration approved it in 2000. People have been able to get the pills by mail since April 2021, when the FDA suspended enforcement of a requirement that the first pill be administered in person. The agency made that option permanent in December.
But the possibility that a constitutional right to abortion may cease to exist has given rise to a new set of questions about whether states can legally and logistically stop residents from getting and taking the pills. The landscape is especially complicated, two legal experts said, given that the medications are federally approved.
“Even though the federal government can say, ‘No, we think that it’s fine for providers to prescribe this medication,’ states can turn around and say, ‘Sure, but we have the authority to regulate what providers do, and we want to make it illegal,'” said Khiara M. Bridges, a law professor at the University of California, Berkeley.
When it comes to taking abortion pills, it’s likely that “people who are pregnant could ingest medication abortions without criminal penalties” even if Roe is overturned, Bridges said, although “state legislatures might refine those laws.”
But even today, accessing medication abortion is onerous and complicated in many states, and regulations vary significantly.
Getting abortion pills is “really difficult in much of the country, and it may be impossible legally in much of the country relatively soon,” said Wendy Parmet, the director of the Center for Health Policy and Law at Northeastern University.
How abortion pills work
The first pill in the regimen, mifepristone, blocks progesterone, a hormone that supports pregnancy. The second, misoprostol, consists of four pills usually taken 24 to 48 hours later that induce contractions to effectively empty the uterus.
The regimen can be taken up to 10 weeks after the first day of a patient’s last period. It’s around 97 percent effective at terminating pregnancies, according to a 2015 review of studies. FDA regulations require the pills to be dispensed only by specially certified providers.
The full regimen cost around $560 on average as of 2020, according to a recent study, unless it was covered by insurance, which varies by state and insurance provider. An abortion procedure costs about the same during the first trimester.
Medication abortion is different from Plan B, a pill taken within three days of unprotected sex to help prevent pregnancy.
A wide variety of state regulations
Most states have at least one restriction on medication abortion beyond the FDA’s rules, according to the Guttmacher Institute.
Thirty-two states require the pills to be prescribed by physicians, rather than nurse practitioners or physician assistants. Nineteen require clinicians to be physically present for one or more visits, effectively eliminating access by mail. (They are Alabama, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, West Virginia and Wisconsin.)
Six of those states — Arizona, Arkansas, Louisiana, Missouri, Texas and West Virginia — had also made it illegal to use telehealth for abortion access as of February, according to the Kaiser Family Foundation.
On top of that, Texas and Oklahoma have passed laws that allow private citizens to sue anyone who provides abortion care or helps someone else obtain an abortion after the detection of cardiac activity — around six weeks into a pregnancy.
Aid Access, a nonprofit organization that provides access to abortion pills through the mail, said requests in Texas spiked by 174 percent in the three months after the state’s six-week ban was implemented. But in December, an additional Texas law went into effect that makes it illegal to mail abortion medications in the state.
What happens to abortion pill access if Roe gets overturned?
Overturning Roe — the Supreme Court’s decision is expected in late June — would trigger laws in 13 states that ban abortions. Those laws would make it illegal to prescribe or help people obtain abortion pills, but governments might find that part of the ban difficult to enforce, Parmet said.
“It is going to be very hard for states to completely prevent people within their state from accessing medication abortions,” she said. “We haven’t been very successful at preventing people from accessing all kinds of medications, therapeutics, illicit drugs.”
An additional complication, the two experts said, is the question of whether state bans can override the FDA’s approval.
“There’s an argument — I don’t know that it’s a winning one with the current U.S. Supreme Court — that the federal licensing of up to 10 weeks would override and pre-empt the state’s approximately six-week ban,” Parmet said, referring to the laws in Oklahoma and Texas.
It’s also unclear whether states would have the legal authority to prohibit out-of-state physicians from prescribing abortion pills to their residents.
“The argument that red states are going to make is that even logging in to the Zoom is the provision of health care. So if a provider in New York logs in to a Zoom with someone in Texas, then that provider is providing health care to a Texas resident,” Bridges said.
But, she added, “if the pandemic-era loosening of restrictions around telehealth remain, then the doctor in New York should be free from prosecution.”
Abortion pills are safe
Complications from medical abortions arise in just a fraction of a percent of patients, according to a 2018 National Academies of Sciences report. A more recent study, published in February, found that about 1 percent of people who had self-managed medication abortions experienced adverse effects.
The pills do, however, cause cramping and bleeding that can last several hours or longer. (Bleeding or spotting may continue for several weeks.)
“There are greater risks to health if you’re getting medication and you don’t know where it’s coming from,” Parmet said. “What we’re really going to have is chaos.”