The Supreme Court’s decision to overturn Roe v. Wade, the ruling that established the right to abortion nearly 50 years ago, will make it more challenging for many Americans to obtain abortion pills.
More than half of all U.S. abortions in 2020 were medication abortions — up from 39% in 2017, according to the Guttmacher Institute, an abortion rights research and advocacy organization.
But 13 states have trigger laws going into effect that will ban all or nearly all abortions, including medication abortions.
“Patients in the ban states will have no access to abortion by any method,” said Helene Krasnoff, vice president of public policy litigation and law at Planned Parenthood.
Bans on abortion pills, however, may get into murky legal territory, since the medications are federally approved. In a statement on Friday, Attorney General Merrick Garland said “states may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
Alina Salganicoff, director of women’s health policy at the Kaiser Family Foundation, said much is still unknown about how the issue will play out.
“We haven’t been in a situation where the FDA has approved a drug as safe and effective and you can use it legally in one state without any problem and then in another state it’s banned,” she said.
What are the trigger laws in each state?
With Roe overturned, trigger laws immediately took effect in Kentucky, Louisiana and South Dakota.
In other cases, a state official must certify that Roe has been overturned before abortion bans go into effect. That already happened in Arkansas, Missouri and Oklahoma. Mississippi, North Dakota, Utah and Wyoming could do so in the coming hours or days.
It will take another 30 days for trigger laws to take effect in Idaho, Tennessee and Texas, according to the Guttmacher Institute.
In all these states, abortion laws target the providers of procedures and pills.
“It will be unlawful to issue that prescription to someone in a ban state,” Krasnoff said.
Here are the specific laws in each state, according to the Guttmacher Institute:
Arkansas: Abortions are now a felony, punishable by up to 10 years in prison, a fine of up to $100,000, or both, unless a pregnant person’s life is in danger.
Idaho: Abortions will become a felony, punishable by two to five years in prison. Health care providers who perform abortions can have their licenses suspended for at least six months or permanently revoked if there is more than one offense. Exceptions to the law apply if a pregnant person’s life is in danger or the pregnancy resulted from rape or incest that was reported to law enforcement.
Kentucky: It is now a felony to provide an abortion unless a pregnant person’s life is in danger.
Louisiana: Abortions are a felony, punishable by up to 10 years in prison and a fine of $10,000 to $100,000, with exceptions for life-threatening medical emergencies.
Mississippi: Abortions will become a felony, punishable by up to 10 years in prison unless a pregnant person’s life is in danger or the pregnancy resulted from a rape that was reported to law enforcement.
Missouri: It’s a felony to provide an abortion unless a pregnant person’s life is in danger or the pregnancy may substantially and irreversibly impair a major bodily function. Health care providers who perform abortions can have their licenses suspended or revoked.
North Dakota: It will become a felony to provide an abortion unless a pregnant person’s life is in danger or is a victim of rape or incest.
Oklahoma: Abortion is a felony punishable by two to five years in prison unless a pregnant person’s life is in danger.
South Dakota: It’s a felony for anyone to provide an abortion unless a pregnant person’s life is at risk.
Tennessee: It will soon be a felony to provide an abortion unless a pregnant person’s life is in danger or the pregnancy may substantially and irreversibly impair a major bodily function.
Texas: Abortions will become a felony, and providers can be fined at least $100,000 for each violation.
Utah: Abortion will become a felony unless a pregnant person’s life is in danger, the pregnancy may substantially and irreversibly impair a major bodily function, the fetus has a life-threatening abnormality or the pregnancy resulted from rape or incest that was reported to law enforcement.
Wyoming: Abortion will become a felony punishable by up to 14 years in prison unless a pregnant person’s life is in danger, the pregnancy resulted from rape or incest or may substantially and irreversibly impair a major bodily function.
In many of these laws, the exceptions don’t prevent abortion providers from being prosecuted, Krasnoff said. Rather, providers can raise the exception in their legal defense.
Challenges around enforcement
Abortion bans will force many clinics to close, ending that route to obtaining abortion pills. But states may still find it difficult to restrict access to the pills, even if it’s technically illegal.
“In the beginning, it’s going to be pretty hard to track and follow and enforce a lot of this, particularly because people can’t go into other people’s mail,” Salganicoff said, adding, “when you make something illegal or banned, a black market always arises.”
Those seeking abortions despite bans in their states might, for example, travel to another state to get the pills where they are legal, use an address in another state then have the package forwarded, look for providers in other states willing to ship pills by mail under the table, rely on providers in other countries that mail pills to the U.S., or obtain the medications abroad.
“We will have clinicians that will test these new laws for sure,” Salganicoff said.
Aid Access, a nonprofit organization in Europe founded by Dutch doctor Rebecca Gomperts, is one of the groups that sends abortion pills to U.S. residents.
“Aid Access will continue to help women in the U.S.A.,” Gomperts told NBC News.
Experts worry, however, that getting abortion medications through back channels can raise the risk of quality or safety issues.
“We will have quite a range in terms of the quality of the mifepristone that’s going to be available outside of traditional clinical channels,” Salganicoff said, adding, “people are really going to be, in many cases, left on their own to judge and potentially vulnerable to bad actors who may not be providing the medication that people seek.”
Telehealth abortion services were limited before the Roe decision
The Food and Drug Administration approved the two-drug abortion medication regimen in 2000. The first pill, mifepristone, blocks progesterone, a hormone that supports pregnancy. The second drug, misoprostol, is taken as four pills 24 to 48 hours later to induce contractions. (It is also used to prevent stomach ulcers.)
The FDA initially required patients to obtain the medications in clinics, hospitals or doctors’ offices, but in December, the agency permanently allowed people to receive abortion pills by mail following telehealth appointments.
But even before Friday’s decision, many states had restrictions on medication abortions. In 19 states, laws either ban access to the pills via telehealth or require a clinician to be physically present when the pills are taken. In 32 states, physicians must administer the pills, not nurse practitioners or physician assistants.
Because of that, services that provide abortion care and prescriptions via telehealth don’t anticipate much change to their business.
Hey Jane, an online abortion provider, currently operates in six states: California, Colorado, Illinois, New Mexico, New York and Washington.
Another telehealth service, Abortion on Demand, operates in 22 states, but the company’s director of clinical operations, Leah Coplon, said that list does not include “many of the states that are likely to criminalize abortion.”
Abortion on Demand requires patients to be in a state where abortion is legal at the time of their online appointment, and to have a mailing address in that state. Because of that, Coplon said, the company might have to stop providing care in some states.
Of the states currently served, “Georgia is probably the most likely that telehealth medication abortion may not be accessible,” Coplon said. “If folks in Georgia can’t get telehealth care, that means quite a bit of travel to someplace where they could.”