For decades, we have seen the abortion battle in terms of physical clinics: protesters outside, security measures inside, legal efforts to shut them down.
Brace yourself for a new reality: the future of abortion is increasingly in pill form.
These pills are taken at home and their demand has increased in recent years as traditional abortion procedures decline.
If the United States Supreme Court overturns Roe v. Wade, expect a fight on many fronts regarding abortion pills: how they’re prescribed, where they’re prescribed, how they’re shipped.
Canada could become a front in the battle as abortion providers looking for pills outside the United States have started looking for suppliers in the north.
“This [is a] new era we are entering,” said Amanda Allen, senior attorney and director of the New York-based Lawyering Project, which works to ensure access to abortion.
“It’s new legal territory. There are a lot of untested theories and a lot of ways to solve these problems that we haven’t had to use yet, frankly.”
Legal theory will face a new reality if the US Supreme Court strikes down the right to abortion, with two dozen states set to suspend access.
In the process, we would see the acceleration of an existing change.
Traditional abortion surgery has fallen to an all-time low in the United States. Meanwhile, the use of medical abortion – using two pills, taken in succession – took off.
A milestone was reached during the pandemic, as people reduced their trips and began to seek home services, including online medical prescriptions.
Examples of unknown legal issues
For the first time, the pills became the main method of abortion in the United States, 20 years after they were first approved by the Food and Drug Administration (FDA).
This home drug was used in about 54% of abortion cases in 2020, according to polls by the Guttmacher Institute, a pro-choice research group.
This new reality means new legal tensions.
It will take years to resolve such disputes if red states ban abortion and abortion pills – only to find they can’t stop shipping pills.
Here is an example. What will the courts say if a red state seeks to prevent a federal agency, the US Postal Service, from shipping perfectly legal, federally approved pills to the United States?
The prediction of a law professor at the University of Chicago: these anti-abortion states will not achieve much.
“I won’t be able” to stop it
Gerald Rosenberg said abortion pills are virtually unstoppable and he expects them to fill most of the void left by closed clinics.
“They will not be able to [stop] said Rosenberg, author of The Hollow Hope: Can the Courts Bring Social Change?, a soon-to-be-updated book on whether the courts can stimulate social reform.
“I would say the ability of states to control the entry of these drugs into their states is negligible. Just think of what a tremendous job the states have done to keep cocaine out.”
He called it an impossible task to find the vehicles and packages bringing the pills: “Is Alabama going to pull over every car with out-of-state license plates and search them? No. It’s simply nonsense.”
His prediction comes with a caveat, however. The pills cannot fully replace surgical abortion, as they are only approved for the first 10 weeks of pregnancy, when most but not at allabortions traditionally occur.
The pills – mifepristone and misoprostol – cost several hundred dollars and different studies to have found they worked up to 99.6% of the time, with hospitalization or other serious adverse effects less than 1%.
First examples of legal fight to come
Others are less sure of what awaits them.
Christie Pitney expects a fight on every conceivable front, anticipating that abortion opponents will try to restrict interstate travel and check postal packages. She is a certified nurse midwife with Aid Access, a virtual clinic that offers online consultations and prescriptions for abortion pills.
“The anti-abortion movement has a history of trying things, and trying things – and things that seem crazy and things that don’t seem to stick. Because when they keep going with this onslaught, eventually something sticks. “Pitney said.
“That’s what we’re seeing right now with this [Supreme Court] decision. So I would like to say I’m confident, but there’s a doubt in my mind that they won’t find a way around it.”
We got a first look at the outlines of the upcoming competition. After President Joe Biden took office, the US FDA authorized patients to receive the pills by mail.
This made it easier for women to access them in remote rural areas and places without nearby abortion providers.
Blue states have also been considering legislation, like Connecticut’s, that will prohibit state agencies from cooperating with other states trying to investigate doctors who prescribe abortions.
blue or red states
The red states, on the other hand, have intensified restrictions: while 33 states say abortion drugs must be provided by a licensed physician 19 , either restricting the use of telehealth or requiring the physician to be physically present when prescribing medications.
More challenges are coming.
WATCH | The United States braces for the fallout from the Roe vs. Wade decision:
Texas spent the last year a straight it could imprison and fine anyone who provides abortion pills via telehealth or by mail. Missouri considered a bill to make it illegal to help someone leave the state for an abortion.
Abortion providers look outside the country for security of supply.
Aid Access has clinicians in the United States for patients from certain states, and a operation in Europe write prescriptions for more restrictive states. The overseas operation sources the pills from an Indian pharmacy, which takes much longer to ship to the United States, up to two or three weeks.
For a faster supply route, some suppliers are eyeing the neighboring country: Canada.
Who contacts Canada
Groups advocating access to abortion pills have reached out to Canadian pharmacies as potential partners, said Elisa Wells, co-founder of one such group, Diet C.
They haven’t succeeded yet.
“They’re interested,” Wells said of Canadian pharmacies. “But they are trying to figure out how they can do it within the regulations that bind them.”
Pitney of Aid Access described similar conversations with Canadian pharmacies.
“[They cite] concern about the legality, the ability to send mail to the United States,” she said. “If there was a Canadian pharmacy that was willing and able to work with us, we would absolutely be able to use their help.
The international angle raises the question of what would happen if a US state sought to sue a foreign supplier.
Pitney said she doubts the United States will successfully prosecute an alien and cites her own organization’s experience. Aid Access’ foreign operation has been sending pills to the United States for several years; he received a cease and desist letter of the FDA, and also has for follow-up the FDA for seizing shipments – and it’s still standing.
“I feel confident,” she said.
Rosenberg also doubts that the United States is seeking extradition, based on his own reading of what is mentioned – and not mentioned – in the Extradition Treaty between Canada and the United Stateswhich, he notes, is between two federal governments.
“The extradition treaty is between the United States and Canada – not between the State of Alabama and Canada,” he said. “[Extradition] seems unlikely.”
Add that to the list of unresolved issues as we navigate uncharted legal territory that risks stretching across borders.