Breaking: Pro-Lifers Grapple with Mail-Order Abortion Pill Loopholes as Roe Decision Looms

When Texas lawmakers were crafting the state's Heartbeat Act last year, Representative Stephanie Klick heard rumblings from abortion advocates of a work-around to enable women to get an abortion even after a fetal heartbeat was detected. Their solution: mail-order abortion pills.

"One of the things that we were beginning to hear online when the Heartbeat bill was being debated was, 'Oh, we've got a backdoor. We can just send these pills in the mail to get around that,'" Klick, a Republican, recalled of efforts to circumvent the state's new law.

Pro-life lawmakers like Klick responded with Senate Bill 4, or the "No Mail-Order Abortions" bill, which, among other things, made it a felony in Texas to send abortion pills through the mail. The bill, which went into effect on December 1, also provided extradition powers that, in theory, allow authorities to bring out-of-state violators back to Texas for prosecution.

But even some advocates for the Texas law question how much of a deterrent it will be for abortion-pill providers residing in states or countries intent on being abortion sanctuaries. If the Supreme Court overturns Roe v. Wade in the coming weeks, as many expect after a draft opinion was leaked to Politico last month, pro-life legal and policy experts told National Review that efforts to reign in mail-order abortion pills in more conservative states will be a critical next front for their movement, one where there are still more questions than answers.

Those efforts would likely include legal attempts to go after rogue doctors who knowingly break anti-abortion state laws, putting pressure on financial institutions and website hosts to stop enabling organizations who break the laws, and applying federal pressure to crack down on international pill providers. Some Democrat-led state are already passing laws to protect abortionists within their borders from prosecution by pro-life states like Texas.

Klick said she's heard anecdotal stories of blue-state abortionists sending pills by mail to women in Texas. Internationally, Dutch abortionist Rebecca Gomperts, through her Austria-based nonprofit Aid Access, has proudly shipped tens of thousands of abortion pills into the U.S., including into pro-life states like Texas. Even if Roe is overturned, Aid Access leaders have vowed to continue mailing pills into the U.S., including into states where it's illegal.

"I don't see a route [to stopping us]," Christie Pitney, a midwife who fills prescriptions for Aid Access, told Vox in May. "It's not to say that it's impossible, I just don't see a route for politicians to eliminate access to Aid Access; they just don't have the jurisdiction to criminalize an international doctor."

Jordan Sekulow, executive director of the American Center for Law & Justice, said in an email that there clearly are loopholes that need to be closed to stop groups like Aid Access.

"The medication abortion issue is only just getting started," he wrote, "and there is no clear-cut answer right now as to the recourse that states will have against abortionists who are mailing medication abortions into pro-life states from either inside or outside the U.S."

Katie Glenn, state policy director for the pro-life Susan B. Anthony List, said she worries that pro-life lawmakers will wait too long to take action to crack down on mail-order abortion pills.

"I'm terrified of how many women will have to die for us to decide that it's really a bad idea to send these drugs through the mail," she said.

Not a Pleasant Process

Developed in France in the 1980s, the chemical abortion process involves two pills: mifepristone, a progesterone blocker that kills the unborn child by depriving it of nutrients, and misoprostol, which causes uterine contractions to empty the uterus, according to a report by Melanie Israel, a policy analyst with the Heritage Foundation's DeVos Center for Life, Religion, and Family. The U.S. Food and Drug Administration approved Mifeprex — brand name mifepristone — in 2000, after an intense lobbying effort by the Clinton administration.

FDA restrictions have been loosened in recent years, including in 2016, under the Obama administration, when use of the drug was expanded from 49 days of gestation to 70.

To make it easier for women to get the drug during the Covid-19 pandemic, the FDA dropped a requirement that Mifeprex be dispensed in-person at clinics, medical offices, or hospitals. In December, the Biden administration adopted a rule to permanently allow abortion pills to be delivered through the mail. "It was absolutely an example of the abortion industry not letting a crisis go to waste," Israel said of the loosening of restrictions during the pandemic.

Israel told National Review that there's a general misunderstanding about what overturning Roe would look like in the U.S. Abortion pills did not exist when Roe was decided, and they were not yet an option in the U.S. when the Supreme Court decided Planned Parenthood v. Casey in 1992. Thirty years after Casey, more than half of all abortions in the U.S. are chemical abortions, the pro-abortion Guttmacher Institute reported in February.

In a post-Roe world, most illegal abortions would likely take place not in a back alley or an underground clinic, but through the U.S. Postal Service.

"When most people think about abortion, they're thinking of a surgical abortion procedure," Israel said. "But today, we're really more often than not talking about a woman taking medication, often at home, by herself. Not even in the presence of a doctor. In some cases, having never been examined by a doctor in the first place."

While pro-abortion activists paint the chemical abortion process as safe and easy, mifepristone is associated with a variety of adverse effects, including fever, nausea, vomiting, cramping, and heavy bleeding, as well as more serious side effects like hemorrhaging and septic shock.

Taking the pills after 13 weeks can lead to an incomplete abortion, and abortion pills won't end an ectopic pregnancy — a pregnancy outside the womb, typically in a fallopian tube — that can be life-threatening if not diagnosed and properly treated.

A report last month on the feminist website The 19th described the sometimes excruciating pain that some women endure after taking abortion pills. "I was not prepared for how much pain I would be in," one woman said of her experience. "I went through a huge deal of pain physically. I was nauseous nonstop." Another woman told the outlet that her chemical abortion was "the most painful experience I've ever had in my life." She told her boyfriend "I just want to die."

"People think it's pills, it's not surgery," Klick said of abortion proponents who minimize the dangers of the pills. "It is not a pleasant process for women to go through."

The FDA through 2018 was aware of at least 24 deaths and more than 4,000 adverse events associated with mifepristone, according to Israel's report. Although those numbers are not huge, they are surely an undercount, as reporting requirements in the U.S. have been relaxed in recent years.

In some cases, medical workers aren't instructed how to report abortion complications, and in some cases, they don't even know an abortion occurred. Aid Access, like some other pill providers, tells women that if they have complications, they should get medical assistance immediately. And then it encourages them to lie to their doctor. "You do not have to tell the medical staff that you tried to induce an abortion; you can tell them that you had a spontaneous miscarriage," according to the Aid Access website.

Conflicting State Laws

Most states have laws on the books that put at least some restrictions on chemical abortions. Thirty-two states require that abortion pills be prescribed by a licensed physician — not physician assistants, advanced practice nurses, or anonymous activists behind shadowy websites. Nineteen states, mostly in the South and Midwest, prohibit the use of telemedicine to prescribe abortion pills, or require the clinician to be physically present when the pills are administered, according to the Guttmacher Institute. In addition to Texas, at least five other states pass limits on sending abortion pills through the mail in 2021, according to NPR.

Glenn, the Susan B. Anthony List lawyer, said that an abortion-pill provider who mails pills into a state that prohibits the pills to be mailed or that requires they be prescribed by an in-state doctor is violating that state's laws. But while Texas lawmakers passed legislation that allows prosecutors to extradite telemedicine providers who send in pills from another state, it's unclear if they'll legally be able to do so in many cases.

"The lawyer answer is, it depends," Glenn said.

Lawmakers in Connecticut already have passed legislation to shield abortion providers in that state from other states' abortion laws. California lawmakers are considering a similar law.

"These kinds of laws undoubtedly are being introduced and passed at least in part because of the medication abortion issue," Sekulow wrote in an email.

Amy O'Donnell, a lobbyist and spokeswoman for the Texas Alliance for Life, acknowledged that extradition does require the cooperation between states. "How that will be navigated is something that we are looking into and will continue to look into," she said.

The issue of extraditing abortion-pill providers from other states to Texas is "complicated," Klick said, "because you've probably got some attorney generals and prosecutors, D.A.s in other states, that personally don't agree with what we've done. But there are other states that do support it, and will probably cooperate. It's not a clean-cut thing. We've got 50 states."

Klick questions the constitutionality of state laws that attempt to shield abortionists who knowingly violate another state's laws. Supporters of the Texas law and other laws limiting mail-order abortion pills point to the "full faith and credit" clause of the U.S. Constitution that requires states to respect the laws and institutions of other states.

"If a crime is committed on a Texas resident, and the other state is saying 'We're not going to allow that prosecution,' you've got a conflict there. I do believe that will be litigated," Klick said, adding that "at the very least, you're talking about practicing medicine without a license in the jurisdiction where the patient is."

It will be difficult for a state like Texas to go after an international abortion-pill provider like Gomperts with Aid Access without the involvement of the federal government, O'Donnell said.

In 2019, the FDA under the Trump administration sent Aid Access a warning letter, alleging that its generic mifepristone was "misbranded and unapproved" in the U.S., and sending it into the country was a violation of federal law. Aid Access in turn sued the FDA, and argued that its drugs were legal in the U.S. and that the agency was engaged in a "blatant attempt" to "deter Dr. Gomperts from providing her patients with necessary medical care." The FDA took no further action against Aid Access, and the case was dismissed.

Unregulated drugs shipped in from overseas could be contaminated, may have been mishandled, and could contain other, unexpected ingredients, authorities warn. Klick said the problem with adulterated drugs from overseas is "a huge issue."

"The public needs to be warned that if they're getting something from a foreign country, it may or may not be what they say that it is in that packaging," she said.

Aid Access is "an international illegal trafficker of abortion drugs," and stopping them from illegally sending pills into the U.S. is a federal issue, O'Donnell said. But, she said, the Biden administration won't do that, "because they are pro-abortion extremists."

"We hope that a future pro-life administration will take action on the issue, and stop them from funneling these drugs in to hurt our women in our country and in our state," she said.

Applying Pressure and Building Community

Pro-life advocates are looking at a variety of avenues to curb illegal mail-order abortion pills regardless of the Supreme Court's expected ruling on abortion.

Most doctors are not willing to prescribe drugs across state lines where they aren't licensed, Glenn said. So, she said, "our focus is not on regulating around this drug generally. It's on how to we get to those bad actors who know that they're doing something that exceeds the scope of their license, certainly exceeds what the FDA has permitted."

One option is going after the certification of abortion doctors who knowingly violate state laws.

"If Republicans win the White House in 2024, I would love to see somebody come into the FDA who wants to do that, who wants to say, certification isn't a blank check to do what you want," Glenn said. "You have to actually abide by this, because currently the certification requirements still say things like, you have to be able to provide necessary follow-up care for complications. A doctor in California can't do that for me in Tampa."

Pro-life advocates also want to beef up reporting requirements for abortion-pill complications to help build a better record of the pills' negative effects. Glenn is also in favor of putting pressure on the financial firms and web hosting companies that enable groups like Aid Access to operate and collect payments, similar to when Visa and Mastercard stopped processing online payments on PornHub after a 2020 New York Times report detailed "unlawful content" on the site. Glenn said those companies acted, "because pressure was put on them to do so."

"Every single one of these is a financial transaction that is processed online," she said. "We have records of it. All of these websites are being hosted. If this website is breaking the law, their domain host has no responsibility to leave them up there, and arguably has a responsibility to shut them down."

Aid Access already has complained that big tech platforms and their search engine algorithms have made it difficult for potential clients to find their website.

At the federal level, Glenn said a more pro-life administration could use its relationships overseas to make sure countries like India, where many of Aid Access's abortion pills are shipped from, are aware that stopping the unapproved pills from entering the U.S. is a priority.

"That is a country where we have long-established relationships," Glenn said of India. "I would think it could be of interest to them, but certainly if we express that it's of interest to us, I think things like that will really help."

Because the abortion pills typically are mailed is small amounts in unmarked packaging, identifying them and intercepting them likely will be difficult, but Glenn said she believes there are ways to improve on that front. "I don't think you need to pull 100 percent of the pills out of the mail," she said. "I think you need to pull enough, and then do something about it, so these companies feel like it's not worth doing business here."

In addition to working on the supply side and cracking down on mail-order abortion-pill providers, Glenn said it also is vital to build a support system in the U.S. to help cut back demand. That means offering information and resources to women in need, "so that women don't even want this," Glenn said. "So that if they hear somebody say, 'I can mail you these pills, don't even worry about it,' they're skeptical of that. That doesn't seem like a great idea."

"If money is the problem, there are strangers who will help pay your rent. If you just feel like you can't succeed in school, let's help make that easier. We're kind of building up a community that a lot of people used to have, but unfortunately really don't anymore."

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Pro-Lifers Grapple with Mail-Order Abortion Pill Loopholes as Roe Decision Looms

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