The future of the U.S. abortion battle: Think pills, not clinics
Alexander Panetta | CBC News | Posted: May 6, 2022 8:00 AM | Last Updated: May 6, 2022
Most abortions are now with pills — and we're about to witness a multi-front feud that could involve Canada
Update, June 24, 2022: The U.S. Supreme Court has overturned protections for abortion set out in Roe v. Wade. Read the latest here.
For decades, we've viewed the abortion battle in terms of brick-and-mortar clinics: protesters outside, security measures inside, legal efforts to shut them down.
Prepare for a new reality: Abortion's future increasingly comes in a pill.
These pills are taken at home and demand for them has surged in recent years, as traditional abortion procedures decline.
If the U.S. Supreme Court strikes down Roe v. Wade, expect a multi-front fight over abortion pills: how they're prescribed, where they're prescribed, how they're shipped.
The first legal shots have already been fired. Just this week, Connecticut passed a bill to protect its doctors who write online prescriptions for out-of-state patients.
Canada could become one front in the battle as abortion providers seeking pills from outside the U.S. have begun looking north for suppliers.
"This [is a] new era that we're moving into," said Amanda Allen, senior counsel and director of the New York-based Lawyering Project, which works to ensure access to abortion.
"This is new legal territory. There are a lot of untested theories and a lot of ways to kind of come at these problems that we haven't had to use yet, frankly."
Legal theory will confront a new reality if the U.S. Supreme Court strikes down the right to abortion, with two dozen states poised to halt access.
In the process, we'd see the acceleration of an existing shift.
Traditional abortion surgery has dropped to its lowest numbers in recorded history in the U.S. Meanwhile, the use of medication abortion — using two pills, taken in succession — has taken off.
A milestone was crossed during the pandemic, as people cut down on their movement and began seeking services from home, including online medical prescriptions.
Examples of unknown legal questions
For the first time, pills became the main method of abortion in the U.S. — 20 years after they were first approved by the Food and Drug Administration (FDA).
That home-use medication was used in approximately 54 per cent of abortion cases in 2020, according to surveys by the Guttmacher Institute, a pro-choice research group.
That new reality means new legal tensions.
It'll take years to resolve such disputes if red states ban abortion and abortion pills — only to find they can't stop the shipment of pills.
Here's one example. What will courts say if a red state seeks to stop a federal agency, the U.S. Postal Service, from shipping pills that are perfectly legal in the U.S. and federally approved?
The prediction from a law professor at the University of Chicago: Those anti-abortion states won't manage to do much.
'Not going to be able' to stop it
Gerald Rosenberg said abortion pills are virtually unstoppable and he expects they'll fill most of the void left by shuttered clinics.
"They're not going to be able to [stop] it," said Rosenberg, author of The Hollow Hope: Can Courts Bring About Social Change?, a soon-to-be-updated book about whether courts can spur social reform.
"The ability of states to police these drugs coming into their states, I would argue, is negligible. Just think what a terrific job states have done keeping cocaine out."
He called it an impossible task to find the vehicles and parcels bringing the pills in: "Is Alabama going to stop every car with out-of-state plates and search it? No. It's just absurd."
His prediction comes with a caveat, however. Pills can't entirely replace surgical abortion, as they're only approved for use in the first 10 weeks of pregnancy, when most, but not all, abortions traditionally occur.
The pills — mifepristone and misoprostol — cost several hundred dollars and different studies have found they worked up to 99.6 per cent of the time, with hospitalization or other serious adverse effects below one per cent.
Early examples of legal fight ahead
Others are less certain about what lies ahead.
Christie Pitney expects a struggle on every conceivable front, anticipating that abortion opponents will try restricting interstate movement and checking mail parcels. She's 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 seem like they won't stick. Because when they continue with that 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 that I'm confident, but there's some doubt in my mind that they won't find a way around it."
We've gotten an early look at the contours of the contest ahead. After President Joe Biden took office, the U.S. FDA allowed patients to receive the pills by mail.
That made it easier for women to access them in remote, rural areas and places without abortion providers nearby.
Blue states have also eyed legislation, like Connecticut's, which will forbid state agencies from co-operating with other states trying to investigate doctors who provide abortion prescriptions.
Blue vs. red states
Red states, meanwhile, have stepped up restrictions: while 33 states say abortion drugs must be provided by a licensed physician, 19 either restrict the use of telehealth or require the physician to be physically present when prescribing the drugs.
More challenges are coming.
Texas last year passed a law that could imprison and fine anyone who provides abortion pills through telehealth or in the mail. Missouri considered a bill to make it illegal to help someone leave the state for an abortion.
Abortion providers are looking outside the country for security of supply.
WATCH | U.S. braces for fallout from Roe v. Wade decision:
Aid Access has clinicians inside the U.S. for patients in some states, and an operation in Europe to write prescriptions for more restrictive states. The foreign operation sources pills from an Indian pharmacy, which takes much longer for shipment to the U.S., up to two or three weeks.
For a quicker supply route, some providers are eyeing the country next door: Canada.
Who's contacting Canada
Groups advocating for access to abortion pills have been reaching out to Canadian pharmacies as potential partners, said Elisa Wells, the co-founder of one such group, Plan C.
They haven't succeeded yet.
"They're interested," Wells said of Canadian pharmacies. "But they're trying to figure out how they can do it in compliance with the regulations that are binding them."
Pitney, of Aid Access, described similar conversations with Canadian pharmacies.
"[They cite] concern about legality, about being able to mail into the United States," she said. "If there was a Canadian pharmacy that was willing and able to work with us, then we would absolutely be able to use their assistance."
The international angle raises the question of what would happen if a U.S. state sought to prosecute a foreign supplier.
Pitney said she doubts the U.S. would successfully prosecute a foreigner and cites the experience of her own organization. Aid Access's foreign operation has been sending pills to the U.S. for several years; it has received a cease-and-desist letter from the FDA, and has also sued the FDA for seizing shipments — and it's still standing.
"I feel confident," she said.
Rosenberg also doubts that the U.S. would seek extradition, based on his own reading of what's mentioned — and not mentioned — in the Canada-U.S. extradition treaty, which, he notes, is between two federal governments.
"The extradition treaty's 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 questions, as we sail into legal territory that's uncharted and which risks spreading beyond borders.